EXHIBIT 10.93
FORBEARANCE AGREEMENT
PARISH OF EAST BATON ROUGE COUNTY OF XXXXXX
STATE OF LOUISIANA STATE OF TEXAS
BE IT KNOWN, that on this ____ day of March, 2003, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the State
and County aforesaid, and in the presence of the undersigned competent
witnesses, personally came and appeared:
XXXXXX BOATS & MOTORS, INC., a Texas corporation, domiciled in Xxxxxx,
Xxxxxx County, Texas, having the present mailing address of 00000 Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and represented herein by Xxxx
Xxxxxx, its President, duly authorized; and
XXXXXX BOATING CENTER LOUISIANA, INC., a Louisiana corporation, domiciled
in Xxxxxx, Xxxxxx County, Texas, having the present mailing address of
00000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and represented herein
by Xxxx Xxxxxx, its President, duly authorized; and
XXXXXX BOATING CENTER FLORIDA, INC., a Texas corporation, domiciled in
Xxxxxx, Xxxxxx County, Texas, having the present mailing address of 00000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and represented herein by
Xxxx Xxxxxx, its President, duly authorized; and
XXXXXX BOATING CENTER GEORGIA, INC., a Texas corporation, domiciled in
Xxxxxx, Xxxxxx County, Texas, having the present mailing address of 00000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and represented herein by
Xxxx Xxxxxx, its President, duly authorized; and
XXXXXX XXXXXXX MARINE, INC., a Texas corporation, domiciled in Xxxxxx,
Xxxxxx County, Texas, having the present mailing address of 00000 Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and represented herein by Xxxx
Xxxxxx, its President, duly authorized; and
Forbearance Agreement
Page 1 of 14
XXXXXX BOATING CENTER OKLAHOMA, INC., a Texas corporation, domiciled in
Xxxxxx, Xxxxxx County, Texas, having the present mailing address of 00000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and represented herein by
Xxxx Xxxxxx, its President, duly authorized; and
XXXXXX BOATS & MOTORS BATON ROUGE, INC., a Louisiana corporation, domiciled
in Xxxxxx, Xxxxxx County, Texas, having the present mailing address of
00000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and represented herein
by Xxxx Xxxxxx, its President, duly authorized; and
XXXXXX BOATING CENTER MISSISSIPPI, INC., a Texas corporation, domiciled in
Xxxxxx, Xxxxxx County, Texas, having the present mailing address of 00000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and represented herein by
Xxxx Xxxxxx, its President, duly authorized,
(hereinafter collectively referred to as "Xxxxxx"); and
BE IT KNOWN, that on this ____ day of March, 2003 before me, the
undersigned Notary Public, duly commissioned and qualified in this Parish, and
State, and in the presence of the undersigned competent witnesses, personally
came and appeared:
HIBERNIA NATIONAL BANK, a national bank organized under the laws of the
United States ("Hibernia"), appearing herein through its duly authorized
representative, Xxxxxx X. Xxxxxxxx, whose present mailing address is P. O.
Xxx 0000, Xxxxx Xxxxx, Xxxxxxxxx 00000, Attention: Special Assets
Department.
Appearers then declared and acknowledged to the Notary the following:
A. Hibernia is the holder and owner for valuable cause and consideration of
the following described promissory notes (the "Hibernia Notes") and the security
therefor, including all rights and privileges appertaining thereto. The Hibernia
Notes are more particularly described as follows:
One certain promissory note dated December 9, 1999 executed by Xxxxxx Boats
& Motors, Inc. and Xxxxxx Boats & Motors Baton Rouge, Inc. in the original
principal amount of $560,000.00, payable to the order of Hibernia, bears
interest until paid at the current rate of 8.61% per annum on the current
principal balance of $494,007.48, and having a maturity of December 9,
2014, (hereinafter the "Baton Rouge Note"); and
Forbearance Agreement
Page 2 of 14
One certain promissory note dated May 11, 1999, executed by Xxxxxx Boats &
Motors, Inc. and Xxxxxx Boating Center Mississippi, Inc. in the original
principal amount of $560,000.00, payable to the order of Hibernia, bears
interest until paid at the current rate of 7.55% per annum, on the current
principal balance of $473,490.49, and having a maturity of May 11, 2014,
(hereinafter the "Mississippi Note"); and
One certain promissory note dated May 11, 1999, executed by Xxxxxx Boats &
Motors, Inc. and Xxxxxx Boating Center Louisiana, Inc. in the original
principal amount of $1,120,000.00, payable to the order of Hibernia, bears
interest until paid at the current rate of 7.25% per annum, on the current
principal balance of $943,568.31, and having a maturity of May 11, 2014,
(hereinafter the "Bossier Note"); and
One certain promissory note dated June 17, 1999, executed by Xxxxxx Boats &
Motors, Inc. and Xxxxxx Boating Center Oklahoma, Inc. in the original
principal amount of $312,000.00, payable to the order of Hibernia, bears
interest until paid at the current rate of 7.25% per annum, on the current
principal balance of $265,698.53, and have a maturity of June 17, 2014,
(hereinafter the "Oklahoma Note"); and
One certain promissory note dated December 26, 2000, executed by Xxxxxx
Boats & Motors, Inc., Xxxxxx Xxxxxxx Marine, Inc., and Xxxxxx Boating
Center Georgia, Inc. in the original principal amount of $4,450,000.00,
payable to the order of Hibernia, bears interest until paid at the current
rate of 7.28% per annum, on the current principal balance of $4,141,252.44,
and having a maturity of December 26, 2005, (hereinafter the "Georgia/Texas
Note"); and
One certain promissory note dated January 29, 2002, executed by Xxxxxx
Boats & Motors, Inc. and Xxxxxx Bating Center Florida, Inc. in the original
principal amount of $559,275.26, payable to the order of Hibernia, bears
interest until paid at the current rate of 5.09% per annum, on the current
principal balance of $509,996.60, and have a maturity of January 28, 2003,
(hereinafter the "Florida Note").
(The Baton Rouge Note, the Mississippi Note, the Bossier Note, the Oklahoma
Note, the Georgia/Texas Note, and the Florida Note are hereinafter collectively
referred to as the "Hibernia Notes," and the total indebtedness represented by
the Hibernia Notes is hereinafter collectively referred to as the
"Indebtedness".)
The Hibernia Notes are secured by certain collateral documents, including,
but not limited to certain Multiple Indebtedness Mortgages and Deeds of Trust
which encumber, in favor of Hibernia, or any holder of the Mortgage Notes,
certain immovable property owned by Xxxxxx; the Multiple Indebtedness Mortgages,
Forbearance Agreement
Page 3 of 14
Deeds of Trust, and related collateral documents are hereinafter collectively
referred to as the "Security Documents."
B. As of March 1, 2003, the current principal balances stated herein above
on each of the Hibernia Notes, with interest continuing to accrue at the rate,
and on the terms and conditions specified in the Hibernia Notes until they are
paid in full, is hereby specifically acknowledged by Xxxxxx.
C. There have occurred certain events of default, including, but not
limited to the Florida Note's maturity, and as a result thereof, Hibernia
demanded full payment of all sums due and owing under the Hibernia Notes.
D. By execution of this Agreement, Xxxxxx acknowledges that (i) the
Hibernia Notes have not been paid and are in default, (ii) Hibernia is not
obligated to make any further advances to Xxxxxx or any other party under the
Hibernia Notes and (iii) the Indebtedness represented by the Hibernia Notes is
fully due and owing to Hibernia, but Xxxxxx has requested that Hibernia forbear
from immediately collecting the Indebtedness and enforcing its rights under the
Security Documents, and Xxxxxx has also requested that Hibernia extend the
period for repaying the Indebtedness.
E. In response to the request of Xxxxxx, Hibernia has agreed to forbear
from immediately collecting the full amount of the Indebtedness and from
enforcing all of its rights and remedies under the Hibernia Notes and the
Security Documents, on the terms and conditions hereof.
NOW, THEREFORE, the parties hereto agree as follows:
In consideration of Hibernia granting a forbearance and an extended
repayment period to repay the Indebtedness, Xxxxxx accepts, and shall comply
with, the following terms and conditions:
1. Effective March 1, 2003, the interest rate for each of the Hibernia
Notes shall be fixed at 10.00% per annum. Effective April 1, 2003, the interest
rate for each of the then outstanding and unpaid Hibernia Notes shall be fixed
Forbearance Agreement
Page 4 of 14
at 10.50% per annum. Effective May 1, 2003, the interest rate for each of the
then outstanding and unpaid Hibernia Notes shall be fixed at 11.00% per annum.
Effective June 1, 2003, the interest rate for each of the then outstanding and
unpaid Hibernia Notes shall be fixed at 12.00% per annum.
2. Effective April 1, 2003, the monthly payments on each of the Hibernia
Notes, except the Florida Note, shall be increased and fixed at a set amount as
set forth below, until each has been paid in full. In addition, the maturity
date of each Hibernia Note, except the Florida Note, all of which have been
accelerated, shall be reestablished as set forth below. The monthly payments,
which are inclusive of interest, and maturity dates for each of the Hibernia
Notes, except the Florida Note, are as follows:
NOTE MONTHLY PAYMENT MATURITY
---- --------------- --------
Baton Rouge $ 6,600.00 June 30, 2003
Mississippi $ 6,500.00 August 30, 2003
Bossier $ 13,000.00 September 30, 2003
Oklahoma $ 3,600.00 July 31, 2003
Georgia/Texas $ 52,000.00 October 31, 2003
For repayment of the Florida Note, Xxxxxx shall make a principal payment of
$100,000.00 at execution of this Agreement. Thereafter, Xxxxxx shall make
additional principal payments of (i) $150,000.00 on or before Xxxxx 00, 0000,
(xx) $150,000.00 on or before April 25, 2003, and (iii) the balance of all
indebtedness due under the Florida Note on or before May 31, 2003.
3. Hibernia shall not release any collateral securing the Indebtedness or
terminate or release any of the Security Documents unless:
(i) the Hibernia Notes are paid in full, or
Forbearance Agreement
Page 5 of 14
(ii) Xxxxxx has made all payments scheduled to be made hereunder as of
such date and Hibernia is paid the Release Payment for the collateral
securing a Hibernia Note, in which case Hibernia shall release the
collateral for which the Release Payment is made as set forth below.
The "Release Payment" is an amount that may be paid by Xxxxxx for the release of
specific collateral securing a Hibernia Note, and shall not be construed as
altering the amount due Hibernia under any Hibernia Note or the total amount of
Indebtedness due Hibernia. The Release Payment for each item of collateral
described below is the amount listed below:
Collateral Release Payment
Collateral Securing Baton Rouge Note $500,000
Collateral Securing Mississippi Note $600,000
Collateral Securing Bossier Note $1,050,000
Collateral Securing Oklahoma Note $390,000
Collateral Securing Florida Note $1,400,000
Georgia Collateral Securing Georgia/Texas Note $1,900,000
Lewisville TX Collateral Securing Georgia/Texas Note $1,250,000
San Antonio TX Collateral Securing Georgia/Texas Note $1,900,000
Upon the receipt of any Release Payment, Hibernia shall apply the Release
Payment first to the payment in full of the Hibernia Note directly secured by
the collateral for which the Release Payment is made and thereafter to the
payment of the Indebtedness in the order of the maturity date of such
Indebtedness, beginning with the earliest maturing Hibernia Note.
Notwithstanding any of the foregoing, at any time that Xxxxxx shall repay the
Indebtedness in full all properties securing the Indebtedness shall be released
without offset and without regard to the Release Payment amounts as defined
herein.
4. Except as modified in this Agreement, all of the terms and conditions of
the Hibernia Notes shall remain in full force and effect, and all of the
Security Documents shall remain in full force and effect to serve as collateral
for Travis's Indebtedness; provided, however, that any covenant in any Security
Forbearance Agreement
Page 6 of 14
Document requiring Xxxxxx to maintain a certain level of cash flow, a certain
tangible net worth or any leverage or other financial ratio is hereby deleted.
5. Provided that (i) there has been compliance with all of the terms and
conditions set forth herein, and (ii) there has occurred no additional Event of
Default under the Hibernia Notes or the Security Documents, other than the
events of default specified herein; and those Events of Default that will be
cured upon compliance with the requirements specified herein, which such events
are the only Events of Default of which Hibernia presently has knowledge, then
Hibernia shall forbear from demanding full and immediate payment of the
Indebtedness, and will forbear from the enforcement of Hibernia's rights and
remedies under the Hibernia Notes and/or the Security Documents. Borrower
acknowledges that if an Event of Default occurs hereafter, and is not cured
within ten (10) days of its occurrence, Hibernia shall no longer be obligated to
forbear from demanding full and immediate payment of the Indebtedness and will
no longer be obligated to forbear from the enforcement of Hibernia's rights and
remedies under the Hibernia Notes and/or the Security Documents.
6. Xxxxxx acknowledges and agrees that the execution of this Agreement is
not a novation, release, satisfaction, extinguishment or payment in full, dation
en paiement, cancellation, or forgiveness of Xxxxxx, or any one of them, of the
amounts due, or of any obligations, under the Hibernia Notes or any of the
Security Documents. Xxxxxx further acknowledges and agrees that it shall act as
trustee of the collateral which secures the Indebtedness, and it shall be a
breach of it's fiduciary responsibility to Hibernia if it fails to immediately
remit to Hibernia, from the sale of any such collateral which secures the
Indebtedness, the amount required to be paid under the provisions of the
Security Documents.
Forbearance Agreement
Page 7 of 14
7. It is further hereby agreed and understood that the terms and conditions
of this Agreement, together with the Hibernia Notes and the Security Documents
constitute all of the agreements between the parties.
8. Xxxxxx does not contest the amount, the validity, priority and
enforceability, whether by civil process or otherwise of any of the amounts due
and described herein and Xxxxxx further does not contest the validity, priority,
enforceability, whether by civil process or otherwise, of the Security Documents
or the Hibernia Notes.
9. Each of the parties hereto certifies that such party is executing this
Agreement under the advice of such party's own counsel, after due deliberation
and with full knowledge of all circumstances surrounding or relating to the
matters covered hereby. Each party hereto is obligated to take such action as
may be consistent with, and in furtherance of, or necessary to the consummation
of this Agreement and its purposes. Each party hereto is obligated to cooperate
in using its best efforts to expeditiously take such actions as may be
consistent with, in furtherance of, and necessary to the consummation of, this
Agreement and its purposes.
10. As further cause and consideration for Hibernia entering into this
Forbearance Agreement, Xxxxxx does hereby and forever settle, compromise,
transact, satisfy, waive, release, acquit, discharge, surrender, and cancel any
and all Claims (as defined hereinafter) against Hibernia, its predecessors,
insurers or insureds, subrogors or subrogees, assignors or assignees, nominees,
representatives, joint venturers, directors, officers, agents, employees,
attorneys, shareholders, principals, parent companies, subsidiary companies,
other affiliates, and any other person or entity which has or might have
derivative, secondary or vicarious liability for their acts or omissions whose
rights are derived from them, it being hereby specifically agreed and understood
Forbearance Agreement
Page 8 of 14
that this Agreement constitutes a compromise of rights and claims and the
execution of this Agreement is not to be construed as an acknowledgement or
admission of any fact of any liability or responsibility by Hibernia, and
Hibernia hereby expressly denies any liability to Xxxxxx. For the purpose of
this Agreement, "Claims" shall mean any and all claims, demands, losses,
damages, causes of action, and rights of action whatsoever, known or unknown,
arising before or at the time of Xxxxxx' execution of this Agreement, whether
based upon tort, negligence, intentional conduct, contract, equity, bankruptcy,
indemnity, contribution, reimbursement, unjust enrichment, and/or any other
legal theory, which any party may be entitled to and which in any way relate to
the Hibernia Notes, the Security Documents or this Agreement.
11. WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR IN
CONNECTION WITH OR RELATING TO THIS AGREEMENT, THE HIBERNIA NOTES, OR ANY OF THE
SECURITY DOCUMENTS OR ANY TRANSACTION CONTEMPLATED HEREBY OR THE RELATIONSHIP
ESTABLISHED THEREBY OR HEREBY, HIBERNIA AND XXXXXX IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING,
ACTION, OR CONTROVERSY, INCLUDING COUNTER-CLAIMS, RECONVENTIONAL DEMANDS,
CROSS-CLAIMS, THIRD-PARTY CLAIMS OR OTHERWISE, AND FOR ALL CAUSES OF ACTION ON
ANY MATTER CONCERNING, ARISING UNDER OR OUT OF, OR IN ANY WAY CONNECTED WITH OR
RELATED TO, THIS AGREEMENT, THE HIBERNIA NOTE, OR ANY OF THE SECURITY DOCUMENTS,
AS WELL AS ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE RELATIONSHIP
ESTABLISHED BY THIS AGREEMENT.
Forbearance Agreement
Page 9 of 14
12. Notices. Any notice required or which may be given under or in
connection with this Agreement, the Hibernia Notes, or any of the Security
Documents shall be in writing and shall be sent by certified mail, return
receipt requested. All such communications shall be mailed as follows: (a) if to
Xxxxxx, Attn: President, 00000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx XX 00000, with a
copy of such communication sent to X. Xxxxxxx Xxxx, Esq., Jenkens & Xxxxxxxxx,
P.C., 2200 One American Center, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000 or to
such other address or such other individual's attention as Xxxxxx xxx advise
Hibernia in writing in the same manner set forth herein; or (b) if to Hibernia,
at P. O. Xxx 0000, Xxxxx Xxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxxx, or to
such other address or to such other individual's or department's attention as
Hibernia may have furnished the Xxxxxx in writing in the same manner set forth
herein. Any communication so addressed and mailed shall be effective 48 hours
after such communication is so mailed.
Appearers acknowledge that they have read all the provisions of this
Agreement and agree to its terms, and further agree that this Agreement shall
become effective on and as of the date of its execution by Hibernia as set forth
hereinafter.
Forbearance Agreement
Page 10 of 14
THUS DONE AND PASSED in Austin, Texas on this the ____ day of March, 2003
before the undersigned competent witnesses and me, Notary, after due reading of
the whole.
WITNESSES XXXXXX BOATS & MOTORS, INC.
---------------------------- ----------------------------
By: Xxxx Xxxxxx
It's: President
----------------------------
--------------------------
NOTARY PUBLIC
THUS DONE AND PASSED in Austin, Texas on this the ____ day of March, 2003
before the undersigned competent witnesses and me, Notary, after due reading of
the whole.
WITNESSES XXXXXX BOATING CENTER LOUISIANA, INC.
---------------------------- ------------------------------------
By: Xxxx Xxxxxx
Its: President
----------------------------
--------------------------
NOTARY PUBLIC
THUS DONE AND PASSED in Austin, Texas on this the ____ day of March, 2003
before the undersigned competent witnesses and me, Notary, after due reading of
the whole.
WITNESSES XXXXXX BOATING CENTER FLORIDA, INC.
---------------------------- -----------------------------------
By: Xxxx Xxxxxx
Its: President
----------------------------
--------------------------
NOTARY PUBLIC
Forbearance Agreement
Page 11 of 14
THUS DONE AND PASSED in Austin, Texas on this the ____ day of March, 2003
before the undersigned competent witnesses and me, Notary, after due reading of
the whole.
WITNESSES XXXXXX BOATING CENTER FLORIDA, INC.
---------------------------- -----------------------------------
By: Xxxx Xxxxxx
Its: President
----------------------------
--------------------------
NOTARY PUBLIC
Forbearance Agreement
Page 12 of 14
THUS DONE AND PASSED in Austin, Texas on this the ____ day of March, 2003
before the undersigned competent witnesses and me, Notary, after due reading of
the whole.
WITNESSES XXXXXX XXXXXXX MARINE, INC.
---------------------------- ------------------------------------
By: Xxxx Xxxxxx
Its: President
----------------------------
--------------------------
NOTARY PUBLIC
THUS DONE AND PASSED in Austin, Texas on this the ____ day of March, 2003
before the undersigned competent witnesses and me, Notary, after due reading of
the whole.
WITNESSES XXXXXX BOATING CENTER OKLAHOMA, INC.
---------------------------- --------------------------------------
By: Xxxx Xxxxxx
Its: President
----------------------------
--------------------------
NOTARY PUBLIC
THUS DONE AND PASSED in Austin, Texas on this the ____ day of March, 2003
before the undersigned competent witnesses and me, Notary, after due reading of
the whole.
WITNESSES XXXXXX BOATS & MOTORS BATON ROUGE, INC.
---------------------------- --------------------------------------
By: Xxxx Xxxxxx
Its: President
----------------------------
--------------------------
NOTARY PUBLIC
Forbearance Agreement
Page 13 of 14
THUS DONE AND PASSED in Austin, Texas on this the ____ day of March, 2003
before the undersigned competent witnesses and me, Notary, after due reading of
the whole.
WITNESSES XXXXXX BOATING CENTER MISSISSIPPI, INC.
---------------------------- --------------------------------------
By: Xxxx Xxxxxx
Its: President
----------------------------
--------------------------
NOTARY PUBLIC
THUS DONE AND PASSED in Baton Rouge, Louisiana on this the ____ day of
March, 2003 before the undersigned competent witnesses and me, Notary, after due
reading of the whole.
WITNESSES HIBERNIA NATIONAL BANK
---------------------------- --------------------------------------
By: Xxxxxx X. Xxxxxxxx
Its: Senior Vice President
----------------------------
--------------------------
NOTARY PUBLIC
Forbearance Agreement
Page 14 of 14
