EXHIBIT 10.74
SECURITY AGREEMENT -TAX REFUND
THIS SECURITY AGREEMENT (the "Agreement") is made as of _______, _____,
by and between ▇▇▇▇▇▇ BOATS & MOTORS, INC. ("Debtor") and TRANSAMERICA
COMMERCIAL FINANCE CORPORATION, as agent ("Agent") for Transamerica Commercial
Finance Corporation ("TCFC"), GE Commercial Distribution Finance Corporation
("GE") and TMRC, L.L.P. ("Tracker").
P R E A M B L E:
Debtor has requested Agent to provide certain financing to Debtor.
Agent has agreed to do so, so long as, among other things, this Agreement is
executed and delivered by Debtor to Agent.
NOW, THEREFORE, in consideration of the premises which are incorporated
herein by this reference and constitute an integral part hereof, the execution
and delivery of this Agreement and in order to induce the Agent to extend its
financing to Debtor, the parties agree as follows:
ARTICLE ONE. DEFINITIONS
SECTION 1.1. DEFINED TERMS. In addition to terms defined elsewhere in
this Agreement or any Supplement or Exhibit hereto, when used herein, the
following terms shall have the following meanings:
"Affiliate" shall mean any Person which, directly or indirectly, owns
or controls, on an aggregate basis, at least a five percent (5%) interest in any
other Person, or which is controlled by or is under common control with any
other Person.
"Collateral" shall mean the following property owned by Debtor,
howsoever arising, wherever located and whether now owned or existing or
hereafter existing or acquired:
(A) the Parent Income Tax Claim/Refund;
(B) any and all proceeds of (A) above.
"Creditor" shall mean individually, and "Creditors" shall mean
collectively, each of GE, Tracker and TCFC, and their respective successors and
assigns.
"Documents" shall mean the collectively, GE Loan Documents, the Tracker
Loan Documents and the TCFC Loan Documents.
"Event of Default" shall mean any event or condition under any of the
Documents that entitles a Creditor or Creditors, as the case may be, that is a
party thereto, to accelerate the stated maturity of any of the Obligations owing
in respect thereof.
"GE Debt" shall mean debts, claims, obligations and liabilities of the
GE Obligors to GE, whether primary, secondary, direct, contingent, fixed, owed
by a GE Obligor to a third party and acquired by GE or otherwise, heretofore,
now and/or from time to time hereafter owing, due or payable, including, without
limitation, all amounts owed or to become due pursuant to the GE Loan Documents
and all renewals, extensions, replacements and modifications thereof.
"GE Loan Documents" shall mean shall mean all now existing or hereafter
created notes, loan agreements, security agreements, guarantees, subordination
agreements, waivers, certificates, mortgages, assignments, indemnities,
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agreements, instruments or other documents (and any amendments, substitutions,
restatements, extensions and renewals to the foregoing) which create, evidence,
secure or otherwise relate to the GE Debt.
"GE Obligors" shall mean the Persons identified on Schedule I to this
Agreement and any other Person now or hereafter becoming an obligor on the GE
Debt.
"Intercreditor Agreement" shall mean that certain intercreditor
agreement by and among the Agent and the Creditors dated as of the date of this
Agreement, as may be amended and/or restated from time to time.
"Obligations " shall mean the GE Debt, the Tracker Debt and the TCFC
Debt.
"Parent Income Tax Claim/Refund" shall mean all monies and claims from
monies due and/or to become due to Debtor from the United States of America or
any department or agency thereof arising out of any application in the name of
Debtor for an income tax refund for any tax year, filed or to be filed at any
time or from time to time by Debtor with the Internal Revenue Service,
including, but not limited to, the application in the name of Debtor for an
income tax refund for tax year 2002.
"Person" shall mean individually, and "Persons" shall mean
collectively, any individual, sole proprietorship, partnership, joint venture,
trust, unincorporated organization, association, corporation, institution,
entity, party or government (whether national, federal, state, county, city,
municipal or otherwise including, without limitation, any instrumentality,
division, agency, body or department thereof).
"Related Documents" shall mean this Agreement, any other instruments or
documents required or contemplated hereunder, whether now existing or at any
time hereafter arising.
"TCFC Debt" shall mean debts, claims, obligations and liabilities of
the TCFC Obligors to TCFC, whether primary, secondary, direct, contingent,
fixed, owed by a TCFC Obligor to a third party and acquired by TCFC or
otherwise, heretofore, now and/or from time to time hereafter owing, due or
payable, including, without limitation, all amounts owed or to become due
pursuant to the TCFC Loan Documents and all renewals, extensions, replacements
and modifications thereof.
"TCFC Loan Documents" shall mean shall mean all now existing or
hereafter created notes, loan agreements, security agreements, guarantees,
subordination agreements, waivers, certificates, mortgages, assignments,
indemnities, agreements, instruments or other documents (and any amendments,
substitutions, restatements, extensions and renewals to the foregoing) which
create, evidence, secure or otherwise relate to the TCFC Debt.
"TCFC Obligors" shall mean the Persons identified on Schedule II to
this Agreement and any other Person now or hereafter becoming an obligor on the
TCFC Debt.
"Tracker Debt" shall mean debts, claims, obligations and liabilities of
the Parent to Tracker, whether primary, secondary, direct, contingent, fixed,
owed by a Parent to a third party and acquired by Tracker or otherwise,
heretofore, now and/or from time to time hereafter owing, due or payable,
including, without limitation, all amounts owed or to become due pursuant to the
Tracker Loan Documents and all renewals, extensions, replacements and
modifications thereof.
"Tracker Loan Documents" shall mean shall mean all now existing or
hereafter created notes, loan agreements, security agreements, guarantees,
subordination agreements, waivers, certificates, mortgages, assignments,
indemnities, agreements, instruments or other documents (and any amendments,
substitutions, restatements, extensions and renewals to the foregoing) which
create, evidence, secure or otherwise relate to the Tracker Debt.
"▇▇▇▇▇▇ Obligors" shall mean collectively, the TCFC Obligors and the GE
Obligors.
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"UCC" shall mean the Uniform Commercial Code as enacted and amended in
the State of Illinois.
SECTION 1.2. OTHER TERMS. Accounting terms used in this Agreement which
are not specifically defined shall have the meanings customarily given them in
accordance with generally accepted accounting principles in effect from time to
time. Terms used in this Agreement which are defined in the UCC, shall, unless
the context indicates otherwise or are otherwise defined in this Agreement, have
the meanings provided for by the UCC.
ARTICLE TWO. COLLATERAL
SECTION 2.1. SECURITY INTERESTS. To secure payment of the Obligations,
Debtor hereby irrevocably pledges, assigns, transfers, conveys and sets over to
the Agent and hereby grants to the Agent a security interest in and to the
Collateral, howsoever arising, wherever located and whether now owned or
existing or hereafter existing or acquired.
SECTION 2.2. PERFECTION AUTHORIZATION AND FILING REQUIREMENTS. Debtor
shall perform any and all acts requested by the Agent to establish, maintain and
continue the Agent's security interest and liens in the Collateral, including
but not limited to, executing or authenticating financing statements and such
other instruments and documents when and as reasonably requested by the Agent.
Debtor hereby authorizes Agent through any of Agent's employees, agents or
attorneys to file any and all financing statements, including, without
limitation, any continuations, transfers or amendments thereof required to
perfect Agent's security interest and liens in the Collateral under the UCC
without authentication or execution by Debtor.
SECTION 2.3 PARENT INCOME TAX CLAIM/REFUND. As additional security for
the payment and performance of the Obligations, Debtor shall (A) collaterally
assign the Parent Income Tax Claim/Refund to Agent in form and manner
satisfactory to Agent (the "Collateral Assignment of Parent Income Tax
Claim/Refund "); and (B) perform any and all acts requested by Agent to have the
Internal Revenue Service and any other Person required by Agent to acknowledge
such assignment and pledge of the Parent Income Tax Claim/Refund to Agent.
ARTICLE THREE. REPRESENTATIONS AND WARRANTIES
SECTION 3.1. DEBTOR. Debtor represents and warrants to the Agent that:
(A) Organization, Etc. It is duly organized, validly existing
and in good standing under the laws of the State of Texas and is duly qualified
and in good standing or has applied for qualification as a foreign corporation
authorized to do business in each jurisdiction where, because of the nature of
its activities or properties, such qualification is required.
(B) Authorization: No Conflict. The execution and delivery of
the Documents are all within the corporate powers of it, have been duly
authorized by all necessary action, have, or by the time of their execution and
delivery shall have, received all necessary governmental or regulatory approval
(if any shall be required), and do not and will not contravene or conflict with
any provision of (i) law, rule, regulation or ordinance, (ii) the articles of
incorporation or by-laws of it; or (iii) any agreement binding upon it or any of
their properties, as the case may be.
(C) Validity and Binding Nature. The Documents executed by it
are the legal, valid and binding obligations of it, enforceable against it, in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization and other similar laws of general
application affecting the rights and remedies of creditors and except as the
availability of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
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(D) Parent Income Tax Claim/Refund. Any of the Parent Income
Tax Claim/Refund is a legitimate claim under the Internal Revenue Code based on
the ▇▇▇▇▇▇ Obligors' net income or losses as of the end of any fiscal year,
including, but not limited to, prior to December 31, 2002 and has been reviewed
by Debtor's independent certified public accountants and has not been disputed
by any Person, including, but not limited to, the Internal Revenue Service and
Debtor's independent certified public accountants.
ARTICLE FOUR. COVENANTS
SECTION 4.1. Debtor. Until all the Liabilities are paid in full, the
Debtor covenants and agrees that:
(A) Books, Records and Inspections. It will (i) maintain
complete and accurate books and records with respect to the Collateral; (ii)
permit reasonable access by the Agent to the books and records of it.
(B) Good Title. It shall at all times maintain good and
marketable title to the Collateral.
(C) Parent Income Tax Claim/Refund. Debtor shall give
immediate written notice to Agent of any communication (whether oral or written)
or notice relating to and any payment of all or any portion of the Parent Income
Tax Claim/Refund contemporaneously with receipt by any ▇▇▇▇▇▇ Obligor or any
agent of any ▇▇▇▇▇▇ Obligor of any such communication, notice or payment. Debtor
agrees that if any Parent Income Tax Claim/Refund, or any portion of any Parent
Income Tax Claim/Refund, is paid to Debtor at any time or from time to time,
Debtor will receive and hold the same in trust for Agent and Debtor will
forthwith upon receipt of such Parent Income Tax Claim/Refund deliver such
Parent Income Tax Claim/Refund to Agent in the identical form of payment
received by the Debtor.
ARTICLE FIVE. EVENTS OF DEFAULT
SECTION 5.1. EVENTS OF DEFAULT. Each of the following acts, occurrences
or omissions shall constitute an event of default under this Agreement (herein
referred to as an "Event of Default"), whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment or order of any court or any order,
rule or regulation of any governmental or nongovernmental body or tribunal:
(A) Any default or event of default, howsoever such terms are
defined, shall occur under any of the Documents; or
(B) default, and continuance thereof for 5 days after written
notice thereof to Debtor by the Agent, in the payment of any amount owing by
Debtor to the Agent pursuant to the this Agreement or any of the Related
Documents; or
(C) Any representation or warranty made by Debtor contained in
the this Agreement or any of the Related Documents shall at any time prove to
have been incorrect in any material respect when made; or
(D) Debtor shall default in the performance or observance of
any term, covenant, condition or agreement on its part to be performed or
observed under this Agreement or any of the Related Documents (not constituting
an Event of Default under any other clause of this Section 5.1 of this
Agreement) and such default shall continue unremedied for 5 days after written
notice thereof shall have been given by the Agent to Debtor; or
(E) Either: (i) any of the ▇▇▇▇▇▇ Obligors shall become
insolvent or generally fail to pay, or admit in writing their inability to pay,
their debts as they become due, or a proceeding under any bankruptcy,
reorganization, arrangement of debt, insolvency, readjustment of debt or
receivership law or statute is filed by or against any ▇▇▇▇▇▇ Obligor or any
▇▇▇▇▇▇ Obligor makes an assignment for the benefit of creditors; provided,
however, that no Event of Default shall exist pursuant to this Subsection E,
Clause (i) due to an involuntary bankruptcy case, proceeding or petition filed
against any ▇▇▇▇▇▇ Obligor unless such involuntary case, proceeding or petition
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shall not have been dismissed or withdrawn within 60 days after the date of such
involuntary filing; or (ii) corporate or other action shall be taken by any
▇▇▇▇▇▇ Obligor for the purpose of effectuating any of the foregoing; or
(F) If notice is given that the Collateral or any part of the
Collateral, is subject to levy, attachment, seizure, or confiscation or
uninsured loss; provided, however, that the deductible amount on any insurance
policy currently in effect on the Collateral shall not be considered an
uninsured loss pursuant to this Subsection; or
(G) any ▇▇▇▇▇▇ Obligor shall be dissolved, whether voluntarily
or involuntarily and such ▇▇▇▇▇▇ Obligor has not taken all actions required to
become reinstated.
ARTICLE SIX. REMEDIES
SECTION 6.1. REMEDIES UPON DEFAULT. Upon the occurrence and continuance
of any Event of Default, and the expiration of any applicable cure period, and
in every such event:
(A) notwithstanding anything in the Documents, each Creditor
may, in its sole and arbitrary discretion, declare the principal of and interest
on their respective Obligations, and all other amounts owed under the Documents,
to be forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived; and
(B) Agent may, in its sole and arbitrary discretion, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived, exercise all of the remedies of a secured party and
mortgage holder under applicable law, including, but not limited to, the UCC,
and all of its rights and remedies under the Documents; and
(C) Agent may require Debtor to make the records pertaining to
the Collateral available to the Agent at a place designated by the Agent which
is reasonably convenient or may take repossession of the records pertaining to
the Collateral without the use of any judicial process and without any prior
notice thereof to Debtor; and
(D) Except as otherwise provided by law, Agent may, at its
option, and in its sole and arbitrary discretion, sell the Collateral at public
or private sale upon such terms and conditions as Agent may reasonably deem
proper, and Agent may purchase the Collateral at any such sale, and apply the
net proceeds, after deducting all costs, expenses and attorneys' fees incurred
at any time in the collection of the indebtedness of Debtor to the Agent and in
the protection and sale of the Collateral, to the payment of said indebtedness,
returning the remaining proceeds, if any, to Debtor, with Debtor remaining
liable for any amount remaining unpaid after such application; and
(E) Debtor shall, upon the request of the Agent, forthwith
upon receipt, transmit and deliver to the Agent in the form received, all cash,
checks, drafts and other instruments for the payment of money (properly
endorsed, where required, so that such items may be collected by Agent) which
may be received by Debtor at any time in full or partial payment of any
Collateral. Debtor shall not commingle any such items which may be so received
by Debtor with any other of its funds or property but shall hold them separate
and apart from their own funds or property and in trust for the Agent until
delivery is made to Agent.
SECTION 6.2. ATTORNEY-IN-FACT. Upon the occurrence and during the
continuation of an Event of Default, Debtor hereby appoints Agent as such
Person's attorney-in-fact, with full authority in such Person's place and stead
and in such Person's name or otherwise, from time to time in Agent's sole and
arbitrary discretion, to take any action and to execute any instrument which
Agent may deem necessary or advisable to accomplish the purpose of this
Agreement.
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SECTION 6.3. REMEDIES ARE SEVERABLE AND CUMULATIVE. All provisions
contained herein pertaining to any remedy of the Agent shall be and are
severable and cumulative and in addition to all other rights and remedies
available in the Documents, at law and in equity, any one or more may be
exercised simultaneously or successively. Any notification required pursuant to
this Article or under applicable law shall be reasonably and properly given to
Debtor at the address and by any of the methods of giving such notice as set
forth in Section 7.3 of this Agreement, at least 10 days before taking any
action.
ARTICLE SEVEN. MISCELLANEOUS
SECTION 7.1. NO WAIVER; MODIFICATIONS IN WRITING. No failure or delay
on the part of Agent in exercising any right, power or remedy pursuant to the
Related 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.
No amendment, modification, supplement, termination or waiver of any provision
of the Related Documents, nor any consent by Agent to any departure by Debtor
therefrom, shall be effective unless the same shall be in writing and signed by
Agent. Any waiver of any provision of the Documents and any consent by Agent to
any departure by Debtor from the terms of any provision of the Related Documents
shall be effective only in the specific instance and for the specific purpose
for which given. No notice to or demand on Debtor in any case shall entitle
Debtor to any other or further notice or demand in similar or other
circumstances.
SECTION 7.2. SET-OFF. Agent shall have the right to set-off,
appropriate and apply toward payment of any of the Liabilities, in such order of
application as Agent may from time to time and at any time elect, any cash,
credit, deposits, accounts, securities and any other property of Debtor which is
in transit to or in the possession, custody or control of Agent, or any agent,
bailee, or Affiliate of Agent. Debtor hereby grants to Agent a security interest
in all such property.
SECTION 7.3. NOTICES, ETC. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing personally delivered or sent by overnight courier or
by facsimile machine, and shall be deemed to be given for purposes of this
Agreement on the day that such writing is delivered or sent by facsimile machine
or one (1) days after such notice is sent by overnight courier to the intended
recipient thereof in accordance with the provisions of this Section 7.3. Unless
otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section 7.3 of this Agreement, notices, demands,
instructions and other communications in writing shall be given to or made upon
the respective parties hereto at their respective addresses indicated for such
party below:
If to the Debtor: ▇▇▇▇▇▇ Boats & Motors, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone: (___) __________
Fax No.: (___) ________
With copies to: Jenkens & ▇▇▇▇▇▇▇▇▇
22001 American Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Phone: (512) __________
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Agent: Transamerica Commercial Finance
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Levenfeld ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 7.4. COSTS, EXPENSES AND TAXES. Debtor agrees to pay all
out-of-pocket fees and expenses of Agent and the Creditors (including, but not
limited to, UCC Filing and Search Fees and fees and expenses of outside counsel
to Agent and the Creditors and paralegals) in connection with the preparation,
administration and enforcement of this Agreement, any of the Related Documents
and the Obligations. In addition, Debtor shall pay any and all stamp, transfer
and other taxes payable or determined to be payable in connection with the
execution and delivery of the Documents and agrees to hold the Agent and each
Creditor harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes. If any suit or
proceeding arising from any of the foregoing is brought against Agent and/or any
Creditor, Debtor, to the extent and in the manner directed by Agent, will resist
and defend such suit or proceeding or cause the same to be resisted and defended
by counsel approved by Agent. If Debtor shall fail to do any act or thing which
it has covenanted to do under this Agreement or any representation or warranty
on the part of Debtor contained in this Agreement shall be breached, Agent may,
in its sole and arbitrary discretion, after 10 days written notice is sent to
Debtor, do the same or cause it to be done or remedy any such breach, and may
expend its funds for such purpose; and any and all amounts so expended by the
Agent shall be repayable to the Agent by Debtor immediately upon the Agent's
demand therefor, with interest at a rate equal to the highest interest rate set
forth in the Documents in effect from time to time during the period from and
including the date funds are so expended by Agent to the date of repayment, and
any such amounts due and owing Agent shall be deemed to be part of the
Obligations secured hereunder. The obligations of Debtor under this Section
shall survive the termination of this Agreement and the discharge of the other
obligations of Debtor under the Documents.
SECTION 7.5. COMPUTATIONS. Where the character or amount of any asset
or liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with generally accepted accounting principles applied on a basis
consistent with those at the time in effect.
SECTION 7.6. FURTHER ASSURANCES. Debtor agrees to do such further acts
and things and to execute and deliver to Agent such additional assignments,
agreements, powers, documents and instruments as Agent may reasonably require or
deem advisable to carry into effect the purposes of the Related Documents, or to
confirm unto Agent its rights, powers and remedies under the Related Documents.
SECTION 7.7. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which counterparts, once they are executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same agreement.
SECTION 7.8. BINDING EFFECTS; ASSIGNMENT. This Agreement shall be
binding upon, and inure to the benefit of, Agent, Debtor and their respective
successors, assigns, representatives and heirs. Debtor shall not assign any of
its rights nor delegate any of its obligations under Documents without the prior
written consent of Agent and no such consent by Agent shall, in any event,
relieve Debtor of any of its obligations under the Documents.
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SECTION 7.9. HEADINGS. Captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit or extend
the scope or intent of this Agreement or any provision of this Agreement and
shall not affect the construction of this Agreement.
SECTION 7.10. ENTIRE AGREEMENT. This Agreement, together with the
Related Documents, contains the entire agreement between the parties hereto with
respect to the transactions contemplated herein and supersede all prior
representations, agreements, covenants and understandings, whether oral or
written, related to the subject matter of the Agreement. Except as specifically
set forth in this Agreement, Agent makes no covenants to Debtor, including, but
not limited to, any commitments to provide any financing to Debtor. The parties
acknowledge and agree that the Agent is acting as agent for the Creditors in
accordance with the terms and provisions of, and subject to the powers and
authorities granted to the Agent by the Creditors in, the Intercreditor
Agreement.
SECTION 7.11. GOVERNING LAW. This Agreement shall be deemed to be a
contract made under the laws of the State of Illinois and for all purposes shall
be construed in accordance with the laws of the State of Illinois.
SECTION 7.12. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 7.13. CONFLICT. In the event of any conflict between this
Agreement and any of the other Documents, (A) as between Debtor on the one hand
and Agent and/or Creditors on the other hand, the terms and provisions of this
Agreement shall govern and control and (B) as among the Agent and the Creditors
or among the Creditors, the terms and provisions of this Agreement shall
control, unless solely with respect to this clause (B), 100% of the Creditors
agree in writing that another agreement, document or instrument shall control.
SECTION 7.14. JURISDICTION; WAIVER. DEBTOR ACKNOWLEDGES THAT THIS
AGREEMENT IS BEING SIGNED BY THE AGENT IN PARTIAL CONSIDERATION OF AGENT'S RIGHT
TO ENFORCE IN THE JURISDICTION STATED BELOW THE TERMS AND PROVISION OF THIS
AGREEMENT AND THE DOCUMENTS. DEBTOR CONSENTS TO JURISDICTION IN THE STATE OF
ILLINOIS AND VENUE IN ANY FEDERAL OR STATE COURT IN THE COUNTY OF ▇▇▇▇ FOR SUCH
PURPOSES AND WAIVES ANY AND ALL RIGHTS TO CONTEST SAID JURISDICTION AND VENUE
AND ANY OBJECTION THAT SAID COUNTY IS NOT CONVENIENT. DEBTOR WAIVES ANY RIGHTS
TO COMMENCE ANY ACTION AGAINST AGENT IN ANY JURISDICTION EXCEPT THE AFORESAID
COUNTY AND STATE. AGENT AND DEBTOR HEREBY EACH EXPRESSLY WAIVE ANY AND ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY WITH RESPECT TO ANY MATTER WHATSOEVER
RELATING TO, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE LOANS, THE
DOCUMENTS AND/OR THE TRANSACTIONS WHICH ARE THE SUBJECT OF THE DOCUMENTS.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered at Chicago, Illinois as of the date first above
written.
DEBTOR: ▇▇▇▇▇▇ BOATS & MOTORS, INC.
------
By:___________________________
Title:________________________
AGENT: TRANSAMERICA COMMERCIAL FINANCE
COPORATION
By:___________________________
Title:________________________
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