EXHIBIT 10.71
LOAN AND SECURITY AGREEMENT
Dated as of January 7, 2003
XXXXXX BOATS & MOTORS, INC.
a Texas corporation, and
its affiliates listed herein
("Borrower")
and
TMRC, L.L.P.
a Missouri limited liability partnership,
("Lender")
TABLE OF CONTENTS
Page
ARTICLE I - Definitions.....................................................................................1
Section 1.1 Definitions.....................................................................................1
ARTICLE II - Amount and Terms of the Secured Loan Facility...................................................2
Section 2.1 Advances........................................................................................2
Section 2.2 Secured Note....................................................................................3
Section 2.3 Obligations Absolute............................................................................3
Section 2.4 Interest........................................................................................3
Section 2.5 Voluntary Prepayment; Termination of Agreement by Borrower......................................4
Section 2.6 Use of Proceeds.................................................................................4
Section 2.7 Mandatory Prepayment............................................................................4
Section 2.8 Payments........................................................................................4
ARTICLE III - Security Interest...............................................................................5
Section 3.1 Grant of Security Interest......................................................................5
ARTICLE IV - Conditions of Lending...........................................................................5
Section 4.1 Conditions Precedent to the Initial Advance.....................................................5
Section 4.2 Determination to Make Other Advances............................................................6
Section 4.3 Conditions Precedent to All Advances............................................................6
ARTICLE V - Representations and Warranties..................................................................6
Section 5.1 Existence and Power; Name.......................................................................6
Section 5.2 Authorization of Borrowing; No Conflict as to Law or Agreements.................................7
Section 5.3 Legal Agreements................................................................................7
Section 5.4 Litigation......................................................................................7
Section 5.5 Title and Liens.................................................................................7
ARTICLE VI - Covenants.......................................................................................7
Section 6.1 Reporting Requirements..........................................................................7
Section 6.2 Authorization to File Financing Statements......................................................8
Section 6.3 Indemnification.................................................................................8
ARTICLE VII - Events of Default, Rights and Remedies..........................................................8
Section 7.1 Events of Default...............................................................................8
Section 7.2 Rights and Remedies.............................................................................9
ARTICLE IX - Miscellaneous...................................................................................9
Section 8.1 No Waiver; Cumulative Remedies..................................................................9
Section 8.2 Amendments, Etc.................................................................................9
Section 8.3 Addresses for Notices, Etc.....................................................................10
Section 8.4 Execution in Counterparts......................................................................11
Section 8.5 Binding Effect; Assignment; Complete Agreement.................................................11
Section 8.6 Governing Law..................................................................................11
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Section 8.7 Severability of Provisions.....................................................................11
Section 8.8 Headings.......................................................................................11
Section 8.9 Costs and Expenses.............................................................................11
Section 8.10 Construction...................................................................................11
Section 8.11 Statutory Notice Regarding Oral Agreements.....................................................11
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LOAN AND SECURITY AGREEMENT
Dated as of January 7, 2003
XXXXXX BOATS & MOTORS, INC., a Texas corporation, 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 Boats & Motors Baton Rouge, Inc., Xxxxxx Boating Center Mississippi,
Inc., Xxxxxx Boating Center Little Rock, Inc., Red River Marine Arkansas, Inc.,
Shelby Marine Center, Inc., and Shelby Marine Pickwick, LLC (collectively and
separately, jointly and severally, sometimes referred to as "Borrower"), and
TMRC, L.L.P., a Missouri limited liability partnership ("Lender"), hereby agree
as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. For purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, the terms
defined in this Article shall have the meanings assigned to them in this
Article, and include the plural as well as the singular.
"Advance" means an advance to Borrower by Lender under the
Secured Loan Facility.
"Agreement" means this Loan and Security Agreement.
"Commitment" means Five Hundred Thousand Dollars ($500,000),
subject to reduction as provided in Section 2.7 hereof and the
limitations and restrictions expressly set forth herein..
"Default" means an event that, with the giving of notice or
passage of time, or both, would constitute an Event of Default.
"Default Rate" means at any time two percent (2%) over the
rate of interest charged by Lender under this Agreement immediately
prior to the occurrence of a Default or Event of Default.
"Draw Request" has the meaning set forth in Section 2.1(c)
hereof.
"Event of Default" has the meaning specified in Section 7.1
hereof.
"Liens" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind, or any
other type of preferential arrangement that has the practical effect of
creating an encumbrance on or in respect of such asset.
"Loan Documents" means this Agreement and the Secured Notes.
"Obligations" has the meaning set forth in Section 3.1 hereof.
"Parent" means Xxxxxx Boats and Motors, Inc., a Texas
corporation.
"Prime Rate" means the rate of interest publicly announced
from time to time by JPMorgan Chase Bank, as its "Prime Rate" or, if
such bank ceases to announce a rate so designated, any similar
successor rate of such Bank or, if no such rate exists, then the prime
rate of any other bank designated by Tracker, it being understood that
such Prime Rate is not necessarily the lowest rate charged by the bank
and is established by the bank in its sole discretion, and such bank
may charge rates at, below or above the Prime Rate.
"Secured Loan Facility" means the loan facility being made
available to Borrower by Lender under Article II hereof.
"Secured Note," means the secured promissory note of Borrower
payable to the order of Lender in substantially the form of Exhibit A.
"Senior Lenders" means GE Commercial Distribution Finance
Corporation and Transamerica Commercial Finance Corporation.
"Subsidiaries" means, as to Parent, each of the Borrowers
other than Parent.
"Tax Refund" means all general intangible rights of Borrower
related to any and all refunds now or hereafter owing to Borrower from
the Internal Revenue Service for tax years ending on or prior to
December 31, 2002, and all proceeds thereof.
"Termination Date" means April 30, 2003.
"Term Sheet" means that certain term sheet between Borrower
and Lender executed and delivered this date specifying, among other
things, the conditions precedent to the making of Advances hereunder.
ARTICLE II
Amount and Terms of the Secured Loan Facility
Section 2.1 Advances. Lender shall make Advances to Parent from time to
time, at the sole discretion of the Lender, during the period from the date
hereof to the close of business on January 31, 2003, or the earlier date of
termination in whole of the Secured Loan Facility under Section 2.5 or Section
7.2 hereof, in an aggregate amount at any time outstanding not to exceed the
Commitment. The Secured Loan Facility shall be a draw-loan facility up to the
aggregate amount of the Commitment. Amounts borrowed and repaid may not be
reborrowed. This is not a revolving loan facility. Borrower agrees to comply
with the following procedures in requesting Advances under this Section 2.1:
(a) Lender shall not make any Advance under the Secured Loan
Facility if, after giving effect to such requested Advance, the sum of
the Advances heretofore made under this Section 2.1 or otherwise would
exceed the Commitment.
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(b) Lender shall not be required to make any Advance under the
Secured Loan Facility so long as an Event of Default exists or any
event exists that with the passage of time or the giving of notice, or
both, would constitute an Event of Default.
(c) Each request for an Advance shall be made in a writing to
Lender (or agent specified in writing by Lender, on behalf of Lender),
which may be transmitted by fax or E-mail (each a "Draw Request")
specifying the date of the requested Advance and the amount thereof,
and shall be made by the Operations Committee of the Board of Directors
of Borrower.
(d) Upon fulfillment of the applicable conditions set forth in
Section 4.2, Lender, at Lender's sole discretion, may make Advances.
(e) Loan proceeds advanced by Lender shall be disbursed by
bank wire transfer to a bank account designated by Parent unless Lender
and Parent otherwise agree.
(f) Each Draw Request shall be deemed to be a representation
by each Borrower, jointly and severally, that: (i) the conditions set
forth in this Section 2.1 have been met, and (ii) the conditions set
forth in Sections 4.1, 4.2 and 4.3, as applicable, have been satisfied
as of the time of the request.
Section 2.2 Secured Note. All Advances, if any, made by Lender under
this Article II shall be evidenced by the Secured Note held by Lender, and shall
be repayable with interest in accordance with the Secured Note. The principal of
the Secured Note shall be payable (a) as provided herein and on the earlier of
the Termination Date or acceleration by Lender or (b) with respect to prepayment
in connection with the Tax Refund, as required under Section 2.7 or acceleration
by Lender under Section 7.2, and in each case shall bear interest as provided
herein.
Section 2.3 Obligations Absolute. The obligations of each Borrower
arising under this Agreement shall be absolute, unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement, under
all circumstances whatsoever.
Section 2.4 Interest. The principal of the Advances outstanding from
time to time during any month shall bear interest (computed on the basis of
actual days elapsed) at the rate per annum of the Prime Rate plus 4%; provided,
however, that at no time shall such interest rate be computed on a Prime Rate of
less than Four and Seventy-five One Hundredths percent (4.75%) per annum and
provided further that such interest rate shall in no instance exceed the maximum
interest rate, if any, allowed by law. The Advances shall bear interest at the
Default Rate from and after a Default or an Event of Default. Interest accruing
on the principal balance of the Advances outstanding from time to time shall be
payable on the Termination Date or earlier prepayment in full.
Section 2.5 Voluntary Prepayment; Termination of Agreement by Borrower.
Borrower may, in its discretion, prepay the Advances in whole or in part at any
time or from time to time. The Commitment automatically shall be reduced
dollar-for-dollar by the aggregate amount prepaid pursuant to this Section 2.5.
Parent, on behalf of Borrower, may terminate this Agreement at any time by
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giving at least 30 days' prior written notice to Lender of Borrower's intention
to terminate this Agreement and by paying in full the amount of all of
Borrowers' obligations under this Agreement and the Secured Note.
Section 2.6 Use of Proceeds. The proceeds of all Advances hereunder
shall be used to provide working capital for Borrower, to pay for operating
expenses and for the immediate cash needs of Borrower, and to pay the fees,
costs and expenses of Lender.
Section 2.7 Mandatory Prepayment. Immediately upon receipt of any
proceeds of the Tax Refund, Borrower will prepay the principal amount of the
Advances by delivering to Lender all checks or other evidences of the Tax
Refund, endorsed without restriction to the order of Lender until such time as
the amount of the Tax Refund so applied equals the total of all Obligations then
outstanding. Until delivered to Lender, all such checks or other evidences of
the Tax Refund shall be held in trust by Borrower for and as the property of
Lender. To the extent that the aggregate amount of the proceeds of the Tax
Refund exceeds the total of all Obligations then outstanding, and provided that
there is no Default or Event of Default by Borrower under this Agreement or the
Secured Note, Lender will release its security interest (granted under Article
III below) in the Tax Refund and will remit to Borrower the full amount of such
excess. The Commitment automatically shall be reduced dollar-for-dollar by the
aggregate amount prepaid pursuant to this Section 2.7.
Section 2.8 Payments.
(a) Delivery of Payments. All payments by Borrower of the Obligations
shall be made in same day funds and delivered to Lender, by wire transfer to
such account or place as Lender may from time to time designate.
Borrower shall receive credit on the day of receipt for funds received by Lender
by 11:00 a.m. (Central time) on any business day. Funds received on any business
day after such time shall be deemed to have been paid on the next business day.
Whenever any payment to be made hereunder shall be stated to be due on a day
that is not a business day, the payment shall be due on the next succeeding
business day and such extension of time shall be included in the computation of
the amount of interest and fees due hereunder.
(b) Invalid Payments. To the extent Borrower makes a payment or
payments to Lender, and to the extent any Tax Refund is delivered to Lender
pursuant to Section 2.7 hereof, which payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause (or to the
Internal Revenue Service, in the case of a Tax Refund), then, to the extent of
such payment or proceeds repaid, the Obligations or part thereof intended to be
satisfied shall be revived and continued in full force and effect as if such
payment or proceeds had not been received by Lender.
ARTICLE III
Security Interest
Section 3.1 Grant of Security Interest. Borrower each hereby assigns
and grants to Lender a lien upon and security interest in (the "Security
Interest") the Tax Refund as security for the payment and performance of each
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obligation of Borrower to Lender under this Agreement and the Secured Note. (All
such obligations being herein sometimes collectively referred to as the
"Obligations"). Borrower authorizes Lender to file such Uniform Commercial Code
financing statements and such notices with the Internal Revenue Service under
the Claims Act (31 U.S.C. ss. 3727 and 41 U.S.C. ss. 15) as Lender may determine
for the purpose of perfecting Lender's security interest in the Tax Refund.
ARTICLE IV
Conditions of Lending
Section 4.1 Conditions Precedent to the Initial Advance. The obligation
of Lender to make the initial Advance under the Secured Loan Facility shall be
subject to the condition precedent that Lender shall have received all of the
following, each in form and substance satisfactory to Lender except to the
extent a condition is waived in writing by Lender:
(a) This Agreement and the Secured Note, each properly
executed on behalf of Borrower;
(b) Borrower shall have provided evidence satisfactory to
Lender of the existence and amount of the Tax Refund and that the IRS
Refund has not been paid and is not subject to offset by the United
States Internal Revenue Service or other agency of the United States
Government; and
(c) Confirmation of filing of such Uniform Commercial Code
financing statements perfecting the security interest granted by
Borrower in the Tax Refund and the filing of such notices with the
Internal Revenue Service regarding the Tax Refund as Lender determines;
(d) A current certificate issued by the Secretary of State of
the State of Texas, certifying that Borrower is in good standing under
the laws of the State of Texas and a current Certificate of Account
Status issued by the Texas Comptroller of Public Accounts confirming no
franchise tax reports or payments are due;
(e) A completed Draw Request;
(f) Copies of Parent's Article of Incorporation and By-laws
and resolutions duly adopted by the Board of Directors of each Borrower
authorizing execution, delivery and performance of this Agreement, the
Secured Notes and the Obligations as certified by the Secretary of each
Borrower;
(g) The opinion letter of Jenkens & Xxxxxxxxx, counsel to
Borrower, on substantially the terms set forth in Exhibit B attached
hereto;
(h) Confirmation that the Tax Refund is subject to no Liens
other than in favor of the Lender and the Senior Lenders;
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(i) All of the conditions to funding set forth and described
in the Term Sheet shall have been satisfied or waived by Lender;
(j) Execution by Lender of an intercreditor agreement with the
Senior Lenders on terms acceptable to Lender; and
(k) Delivery of such other documents, agreements, and
instruments, and the performance by Borrower of such other actions, as
may be determined by each of the Lenders in its discretion.
Section 4.2 Determination to Make Other Advances. After the making of
the initial Advance, all subsequent Advances under the Secured Loan Facility
shall be at the sole discretion of the Lender. In connection therewith, Lender
may require, and Borrower will provide to Lender, such further agreements and
documents and shall take such actions or cause such actions to be taken as
Lender may require.
Section 4.3 Conditions Precedent to All Advances. The obligation of
Lender to make each Advance shall be subject to the further conditions precedent
that on such date:
(a) the representations and warranties contained in this
Article IV are correct on and as of the date of such Advance as though
made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date; and
(b) no event has occurred and is continuing, or would result
from such Advance which constitutes a Default or an Event of Default.
(c) each Senior Lender shall make advances of funds of like
amount of and simultaneously with the Advance being made by Lender.
ARTICLE V
Representations and Warranties
Borrower represents and warrants to Lender as follows:
Section 5.1 Existence and Power; Name. Each Borrower is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, except where the failure to
be in good standing would not have a material adverse effect on the business
taken as a whole. The name of each Borrower set forth in the first paragraph of
this Agreement is the exact and current legal name of Borrower. The
organizational number issued to Parent by the Secretary of State of Texas is
46499000. Borrower has all requisite power and authority, corporate or
otherwise, to conduct its business, to own its properties and to execute and
deliver, and to perform all of its obligations under, the Loan Documents.
Section 5.2 Authorization of Borrowing; No Conflict as to Law or
Agreements. The execution, delivery and performance by each Borrower of the Loan
Documents and the borrowings from time to time hereunder have been duly
6
authorized by all necessary corporate action and do not and will not: (a)
require any consent or approval of the shareholders of such Borrower, (b)
require any authorization, consent or approval by, or registration, declaration
or filing with, or notice to, any governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, or any third party
(other than filings on Form 8-K with the Securities and Exchange Commission to
disclose the transactions contemplated by the Loan Documents), (c) violate any
provision of any law, rule or regulation or of any order, writ, injunction or
decree presently in effect having applicability to such Borrower or of the
Certificate of Incorporation or the By-laws of such Borrower, (d) result in a
breach of or constitute a default under any indenture or loan or credit
agreement or any other material agreement, lease or instrument to which such
Borrower is a party or by which it or its properties may be bound or affected,
or (e) result in, or require, the creation or imposition of any mortgage, deed
of trust, pledge, lien, security interest or other charge or encumbrance of any
nature upon or with respect to any of the properties now owned or hereafter
acquired by such Borrower other than as set forth in Article III of this
Agreement.
Section 5.3 Legal Agreements. This Agreement constitutes, and upon due
execution by Borrower, the other Loan Documents will constitute, the legal,
valid and binding obligations of Borrower, enforceable against Borrower in
accordance with their respective terms.
Section 5.4 Litigation. There are no actions, suits or proceedings
pending or, to the knowledge of Borrower, threatened against or affecting
Borrower or the properties of Borrower before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, which, if determined adversely to Borrower, would have a material
adverse effect on the financial condition, properties or operations of Borrower.
Section 5.5 Title and Liens. The Borrowers collectively have good and
absolute title to the right to receive the Tax Refund free and clear of all
Liens other than security interests in favor of Senior Lenders.
ARTICLE VI
Covenants and Agreements
Section 6.1 Reporting Requirements. Parent will deliver, or cause to be
delivered, to Lender such financial statements, financial information,
projections and other information regarding the business of Borrower (on a
consolidated basis) as Lender may require from time to time in Lender's sole
discretion. In addition, to the extent any Borrower is obligated to furnish any
such financial statements or information to any other provider of credit
facilities or loans or floor-planning financing, Parent will cause copies of all
such information to be delivered simultaneously to Lender.
Section 6.2 Authorization to File Financing Statements. Each Borrower
hereby irrevocably authorizes Lender (or Lender's agent) at any time and from
time to time to file in any filing office in any jurisdiction initial financing
statements and amendments thereto that describe or indicate the Tax Refund.
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Section 6.3 Indemnification. Each Borrower, jointly and severally,
agrees to indemnify, defend and hold harmless the Lender, and its affiliates,
successors and assigns, and all present and future officers, directors,
employees and agents of any of the foregoing (the "Indemnitees"), from and
against (i) any and all liabilities, losses, damages, penalties, judgments,
suits, claims, costs and expenses of any kind or nature whatsoever (including,
without limitation, the reasonable fees and disbursements of counsel) in
connection with any investigative, administrative or judicial proceedings,
whether or not such Indemnitee shall be designated a party thereto, which may be
imposed on, incurred by or asserted against such Indemnitee, in any manner
relating to or arising out of or in connection with the making of the Advances,
the Tax Refund (including any governmental disgorgement attempt or proceeding)
or the use of intended use of the proceeds of the Advances (the "Indemnified
Liabilities"), EVEN IF A COURT DETERMINES THAT THE LENDER'S NEGLIGENCE (OTHER
THAN GROSS NEGLIGENCE) CAUSED SUCH LOSS, LIABILITY OR EXPENSE IN WHOLE OR IN
PART. If any investigative, judicial or administrative proceeding arising from
any of the foregoing is brought against any Indemnitee, upon request of such
Indemnitee, such Borrower, or counsel designated by such Borrower and
satisfactory to the Indemnitee, will resist and defend such action, suit or
proceeding to the extent and in the manner as may be reasonably directed by the
Indemnitee, at such Borrower's sole cost and expense. Each Indemnitee will use
its best efforts to cooperate in the defense of any such action, suit or
proceeding. If the foregoing undertaking to indemnity, defend and hold harmless
may be held to be unenforceable because it violates any law or public policy,
such Borrower shall nevertheless make the maximum contribution to the payment
and satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law. The obligation of such Borrower under this Section 6.3
shall survive the termination of this Agreement and the discharge of such
Borrower" Obligations.
ARTICLE VII
Events of Default, Rights and Remedies
Section 7.1 Events of Default. "Event of Default", wherever used
herein, means any one of the following events:
(a) Any default payment of any interest on or principal of the
Secured Note when due or in the performance, or breach, of any other
covenant or agreement of any Borrower contained in this Agreement, in
the Secured Note or in any other agreement to which both the Borrower
and Lender is a party; or
(b) Any Borrower shall liquidate, dissolve, terminate or
suspend its business operations or otherwise fail to operate its
business in the ordinary course, or sell all or substantially all of
its assets, without the prior written consent of Lender; or
(c) A petition is filed by or against any Borrower under the
United States Bankruptcy Code naming such Borrower as debtor;
(d) Any representation or warranty made by Borrower in this
Agreement, the Secured Notes or in any other certificate, instrument or
statement made or delivered pursuant to or in connection with this
Agreement, the Secured Notes or any other agreement to which both the
8
Borrower and Lender is a party shall prove to have been incorrect in
any material respect; or
(e) Any default by any Borrower under any credit facility of
Borrower with a Senior Lender.
Section 7.2 Rights and Remedies. Upon the occurrence of an Event of
Default, Lender may exercise any or all of the following rights and remedies:
(a) Lender, may, by notice to Parent, declare the Secured Loan
Facility to be terminated, whereupon the same shall forthwith
terminate;
(b) Lender may, by notice to Parent, declare to be forthwith
due and payable the entire unpaid principal amount of the Secured Note
then outstanding, all interest accrued and unpaid thereon, and all
amounts payable under this Agreement, whereupon the Secured Note, all
such accrued interest and all such amounts and obligations shall become
and be forthwith due and payable, without presentment, notice of
dishonor, protest or further notice of any kind, all of which are
hereby expressly waived by each Borrower; and
(c) Lender may exercise any other rights and remedies
available to it under the Loan Documents, the Uniform Commercial Code
or under other applicable law.
ARTICLE VIII
Miscellaneous
Section 8.1 No Waiver; Cumulative Remedies. No failure or delay on the
part of Lender in exercising any right, power or remedy under the Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy under the Loan Documents.
The remedies provided in the Loan Documents are cumulative and not exclusive of
any remedies provided by law.
Section 8.2 Amendments, Etc. No amendment, modification, termination or
waiver of any provision of any Loan Document or consent to any departure by
Borrower therefrom shall be effective unless the same shall be in writing and
signed by Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No notice to or
demand on Borrower in any case shall entitle Borrower to any other or further
notice or demand in similar or other circumstances.
Section 8.3 Addresses for Notices, Etc. Except as otherwise expressly
provided herein, all notices, requests, demands and other communications
provided for under the Loan Documents shall be in writing and shall be: (a)
personally delivered, (b) sent by first class United States mail, (c) sent by
overnight courier of national reputation, or (d) transmitted by telecopy or
e-mail followed, within twenty-four (24) hours, by personal delivery or deposit
with an overnight courier of national reputation, in each case addressed to the
9
party to whom notice is being given at its address as set forth below and, if
telecopied, transmitted to that party at its telecopier number set forth below:
If to any Borrower:
c/o Travis Boats & Motors, Inc.
00000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile No: (000) 000-0000
With copies to:
Jenkens & Xxxxxxxxx
2200 One American Center
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: X. Xxxxxxx Xxxx, Esq.
Facsimile No: (000) 000-0000
If to Lender:
TMRC, L.L.P.
c/o Tracker Marine LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile No: (000) 000-0000
With copies to:
Gallop, Xxxxxxx & Xxxxxx, X.X.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No: (000) 000-0000
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section. All such notices,
requests, demands and other communications shall be deemed to have been given
on: (a) the date received if personally delivered, (b) three (3) business days
after deposit in the mail if delivered by mail, (c) one (1) business day after
being sent by overnight courier, or (d) the date of transmission by telecopy,
provided such telecopy is followed within 24 hours of transmission by delivery
to Lender or deposit with an overnight carrier of an original of the telecopied
document, except that notices or requests to Lender (including but not limited
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to Draw Requests) pursuant to any of the provisions of Article II shall not be
effective until received by Lender.
Section 8.4 Execution in Counterparts. This Agreement and other Loan
Documents may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
Section 8.5 Binding Effect; Assignment; Complete Agreement. The Loan
Documents shall be binding upon and inure to the benefit of Borrower and Lender
and their respective successors and assigns, except that Borrower shall not have
the right to assign its rights thereunder or any interest therein without the
prior written consent of Lender. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and supersedes all prior agreements, written or oral, on
the subject matter hereof.
Section 8.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Missouri
without regard to its choice-of-law or conflicts-of-law principles.
Section 8.7 Severability of Provisions. Any provision of this Agreement
that is prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof.
Section 8.8 Headings. Article and Section headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
Section 8.9 Costs and Expenses. The Borrower agrees to pay on demand
all reasonable costs and expenses (including attorneys' fees) incurred by each
of the Lender in connection with transactions contemplated hereunder, including,
without limitation, the preparation and negotiation of the Loan Documents and
all other documents relating to such Loan Documents, the filing or recording of
any documents or notices, and all expenses of collection and enforcement of the
Obligations and satisfaction, foreclosure or enforcement of the security
interest herein granted.
Section 8.10 Construction. This Agreement has been fully negotiated by
the parties, and there is to be no construction against either party based on
any presumption of that party's involvement in the drafting thereof.
Section 8.11 Statutory Notice Regarding Oral Agreements. The following
notice is given pursuant to Section 432.045 of the Missouri Revised Statutes;
nothing contained in such notice may be deemed to limit or modify the terms of
the Loan Documents:
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. TO PROTECT YOU (BORROWER) AND US (LENDER) FROM
11
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THE WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
[Remaining portion of this page is intentionally blank.]
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
XXXXXX BOATS & MOTORS, INC., as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
TBC ARKANSAS, INC., as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXXX BOATING CENTER ARLINGTON, INC.,
as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXXX BOATING CENTER BEAUMONT, INC.,
as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXXX BOATING CENTER OKLAHOMA, INC.,
as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
13
XXXXXX BOATING CENTER TENNESSEE, INC.,
as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXXX XXXXXXX MARINE, INC., as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
FALCON MARINE, INC., as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
FALCON MARINE ABILENE, INC., as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXXX BOATING CENTER ALABAMA, INC.,
as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXXX BOATING CENTER LOUISIANA, INC.,
as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
14
XXXXXX BOATS & MOTORS BATON ROUGE, INC.,
as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXXX BOATING CENTER MISSISSIPPI, INC.,
as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXXX BOATING CENTER LITTLE ROCK, INC.,
as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
RED RIVER MARINE ARKANSAS, INC.,
as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
SHELBY MARINE CENTER, INC., as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
15
SHELBY MARINE PICKWICK, LLC, as a Borrower
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
LENDER:
TMRC, L.L.P.,
a Missouri limited liability partnership
By: Tracker Marine, LLC,
its __________________________
By: Three Xxxxx Company,
Its Sole Member
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
16
EXHIBIT A
SECURED PROMISSORY NOTE
$500,000.00 Springfield, Missouri
January __, 2003
FOR VALUE RECEIVED, the undersigned, Xxxxxx Boats & Motors, Inc., a
Texas corporation, 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 Boats & Motors Baton Rouge, Inc.,
Xxxxxx Boating Center Mississippi, Inc., Xxxxxx Boating Center Little Rock,
Inc., Red River Marine Arkansas, Inc., Shelby Marine Center, Inc., and Shelby
Marine Pickwick, LLC (collectively and separately, jointly and severally,
referred to as, "Borrower"), hereby promise to pay to the order of TMRC, L.L.P.,
a Missouri limited liability partnership ("Lender"), c/o Tracker Marine LLC,
0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000, or at any other place
designated at any time by the holder hereof, in lawful money of the United
States of America and in immediately available funds, the principal sum of Five
Hundred Thousand and no/100 Dollars ($500,000.00) or, if less, the aggregate
unpaid principal amount of all Advances made by Lender to Borrower under the
Loan and Security Agreement (defined below) together with interest on the
principal amount hereunder remaining unpaid from time to time, computed on the
basis of the actual number of days elapsed, at the interest rate as provided
under the Loan and Security Agreement of even date herewith by and between
Lenders and Borrower (the "Loan and Security Agreement"). The principal hereof
shall be due and payable April 30, 2003, (subject to earlier repayment as
provided in the Loan and Security Agreement), and interest accruing on the
principal balance shall be due and payable as provided in the Loan and Security
Agreement. This Secured Note may be prepaid only in accordance with the Loan and
Security Agreement.
This Secured Note is issued pursuant, and is subject, to the Loan and
Security Agreement, which provides, among other things, for acceleration hereof,
and the holder hereof is entitled to the benefits thereof. This Secured Note is
the "Secured Note" referred to in the Loan and Security Agreement.
This Secured Note is secured by the security interest set forth in the
Loan and Security Agreement. The holder of this Secured Note shall have the
benefit of such security interest.
Borrower hereby agrees to pay all costs of collection, including
reasonable attorneys' fees and legal expenses in the event this Secured Note is
not paid when due, whether or not legal proceedings are commenced.
This Secured Note shall be governed by and construed in accordance with
the internal substantive laws of the State of Missouri, regardless of the place
of execution of this Agreement by any party hereto.
A-1
Presentment or other demand for payment, notice of dishonor and protest
are expressly waived.
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. TO PROTECT YOU (BORROWER) AND US (LENDERS) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THE WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
XXXXXX BOATS & MOTORS, INC., as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
TBC ARKANSAS, INC., as a Borrower
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
XXXXXX BOATING CENTER ARLINGTON, INC.,
as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
XXXXXX BOATING CENTER BEAUMONT, INC.,
as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
A-2
XXXXXX BOATING CENTER OKLAHOMA, INC.,
as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
XXXXXX BOATING CENTER TENNESSEE, INC.,
as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
XXXXXX XXXXXXX MARINE, INC., as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
FALCON MARINE, INC., as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
FALCON MARINE ABILENE, INC., as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
XXXXXX BOATING CENTER ALABAMA, INC.,
as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
A-3
XXXXXX BOATING CENTER LOUISIANA, INC.,
as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
XXXXXX BOATS & MOTORS BATON ROUGE, INC.,
as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
XXXXXX BOATING CENTER MISSISSIPPI, INC.,
as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
XXXXXX BOATING CENTER LITTLE ROCK, INC.,
as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
RED RIVER MARINE ARKANSAS, INC., as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
A-4
SHELBY MARINE CENTER, INC., as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
SHELBY MARINE PICKWICK, LLC, as a Borrower
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
A-5
EXHIBIT B
[FORM OF LEGAL OPINION OF COUNSEL TO BORROWER]
