EXHIBIT 4.14
SUBORDINATION AGREEMENT
THIS AGREEMENT is dated as of 14th day of May, 2004 between ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ (collectively the "Principals") and
Greenfield Commercial Credit (Canada) Inc. ("Greenfield");
WHEREAS Steelbank Inc. (the "Corporation") proposes to enter into a
Factoring and Security Agreement and a General Security Agreement (collectively
the "Greenfield Security") each between the Corporation and Greenfield made the
14th day of May, 2004 pursuant to which Greenfield agreed to provide certain
financing to Corporation;
WHEREAS the Principals have by purchase agreement dated April 2, 2004,
as amended (the "Purchase Agreement") agreed to sell all of their shares in the
capital stock of the Corporation to BST Acquisition Ltd. ("BST");
WHEREAS pursuant to the terms of the Purchase Agreement, the
Corporation has guaranteed certain obligations of BST in favour of the
Principals by Guarantee dated as of May 14, 2004 (the "Guarantee") and in
support for such Guarantee, the Corporation has granted to the Principals a
general security agreement over all of the Corporation's assets dated as of May
14, 2004 (the "GSA") (the Guarantee and the GSA collectively, the "Principal
Documents");
WHEREAS the Corporation and each of the Principals have entered into
employment agreements dated as of May 14, 2004 (collectively the "Employment
Agreements") providing for their continued employment with the Corporation;
WHEREAS pursuant to the terms of the Guarantee, the Corporation has
agreed to pay to the Principals the aggregate amount of $375,000 in the event
that certain shares in the capital stock of Tarpon Industries, Inc. are not
issued to the Principals on or before December 10, 2004 (the "Corporation's
Covenant");
WHEREAS it is desirable that the Principals and Greenfield confirm
their respective priorities as creditors of the Corporation and as secured
parties with respect to the assets of the Corporation.
2.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the
mutual covenants and agreements herein contained, other good and valuable
consideration and the sum of Two Dollars ($2.00) of lawful money of Canada paid
by and between Greenfield and the Principals (the receipt and sufficiency of
which consideration are hereby acknowledged), the parties hereto agree as
follows:
1. Postponement of Payment of Indebtedness.
The Principals hereby postpone payment by the Corporation to the
Principals of all present and future indebtedness and liability now or
hereafter owing by the Corporation to the Principals, whether direct or
indirect, absolute or contingent, matured (by way of acceleration or otherwise)
or unmatured arising from or out of the Principal Documents (the "PRINCIPAL
DEBT"), but specifically excluding any and all present and future indebtedness
and liability now or hereinafter owning by the Corporation to the Principals
under the Employment Agreements (the "EMPLOYMENT OBLIGATIONS") and so long as
no event of default has occurred under the Senior Security, the Corporation's
payment obligations under the Corporation's Covenant (collectively with the
Employment Obligations, the "EXCLUDED DEBT") to and in favour of the payment of
all present and future indebtedness and liability now or hereafter owing by the
Corporation to Greenfield, whether direct or indirect, absolute or contingent,
matured (by way of acceleration or otherwise) as unmatured (collectively, the
"SENIOR DEBT"). Except for the Excluded Debt and except as permitted under the
terms of the Greenfield Security, the Principals shall not obtain or receive
payment of any amount of the Principal Debt from any person or source until the
Senior Debt has been fully paid in cash and until Greenfield has no obligations
to extend credit to the Corporation.
2. Postponement and Subordination of Security.
The Principal hereby postpones and subordinates all existing and future
security heretofore, now or hereafter delivered by the Corporation to the
Principals (collectively, the "PRINCIPAL SECURITY") to and in favour of the
Greenfield Security and all existing and future security heretofore, now or
hereafter delivered by the Corporation to Greenfield (collectively, the "SENIOR
SECURITY"). Notwithstanding any priority to which the Principal may be or may
hereafter become entitled for any reason whatsoever (including, without
limitation, priority by
3.
date and the time or order of creating, granting or executing any document, the
actual or alleged invalidity or unenforceability of any of the Senior
Security, the perfection of, or the giving of notice or any demand for payment
under the date of advance, registration, publication, filing or crystallization
of or in respect of any charge or encumbrance contained in the Principal
Security and the security interests created thereby or by any provisions of any
relevant law or statute), the Senior Security and all rights provided
thereunder or by law or otherwise shall have full and absolute priority over
and with respect to the Principal Security, and the Principal Security shall in
all respects be postponed and rank subordinate and junior to the Senior
Security and all rights provided thereunder or by law otherwise until the
parties hereto agree otherwise in writing or all of the Senior Debt is repaid
in full. All liens, charges, security interests and other encumbrances
contained in the Senior Security shall, in all events and under all
circumstances, rank in priority to all liens, charges, security interests and
other encumbrances contained in the Principal Security.
3. No Enforcement of the Principal Debt and the Principal Security.
The Principals shall not, without the prior written consent of
Greenfield, claim, demand, ▇▇▇ for, commence any action, commence any
proceeding or take any step (including exercising any right of set-off,
initiating any bankruptcy or insolvency proceeding or any step or proceeding to
challenge the validity or enforceability of any of the Senior Debt or the
Senior Security, or otherwise) to enforce any right of the Principals pursuant
to or in respect of the Principal Debt (including the collection thereof) or
any of the Principal Security (including the realization thereof), until the
date on which the Senior Debt has been paid in full in cash and Greenfield has
no obligation to extend credit to the Corporation.
4. Liquidation, Dissolution, Bankruptcy.
In the event of distribution, division or application, partial or
complete, voluntary or involuntary, by operation of law or otherwise, of all or
any part of the assets of the Corporation, or the proceeds thereof, to
creditors or any proposal by the Corporation to creditors for a readjustment,
reamortization or restructuring of the Senior Debt or the Principal Debt, or
other readjustment of any of the indebtedness or liabilities of the
Corporation, whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors,
4.
marshalling of the assets or liabilities of the Corporation or any other
action or proceeding involving the readjustment of all or any part of the
Senior Debt or the Principal Debt, or the application of the assets of the
Corporation to the payment or liquidation thereof, or upon the dissolution or
other winding-up of the business of the Corporation, or upon the sale of all or
substantially all of the business of the Corporation, Greenfield shall be
entitled to receive payment in full in cash of the Senior Debt (including
interest accruing to the date of receipt of such payment at the rate applicable
to the relevant part of the Senior Debt, whether or not allowed as a claim in
any such proceeding) before the Principals are entitled to receive any direct
or indirect payment or distribution of any cash or other assets of the
Corporation on account of the Principal Debt and, to that end, Greenfield shall
be entitled to receive directly, for application in payment of the Senior Debt
(to the extent necessary to pay all Senior Debt in full in cash after giving
effect to any substantially concurrent payment or distribution to Greenfield in
respect of the Senior Debt), any payment or distribution of any kind or
character, whether in cash or other assets, which shall be payable or
deliverable upon or with respect to the Principal Debt. To the extent any
payment of Senior Debt (whether by or on behalf of the Corporation, as proceeds
of security or enforcement of any right of set-off or otherwise) is declared to
be fraudulent or preferential, set aside or required to be paid to a trustee,
receiver and manager or other similar person under any bankruptcy, insolvency,
receivership or similar law or proceeding, then if such payment is recoverable
by, or paid over to, such trustee, receiver, receiver and manager or other
person, the Senior Debt or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment had not
occurred.
5. Payments Received by the Principal.
If, notwithstanding the provisions of this Agreement, prior to the
payment in full in cash of the Senior Debt, the Principals (or any one or more
of them) or any person on its behalf receives any payment from or distribution
of assets of the Corporation on account of the Principal Debt, which under the
provisions of this Agreement, the Principals are not specifically authorized to
receive, then the Principals shall, and will ensure that any such other person
shall, receive and hold such payment or distribution in trust for the benefit
of Greenfield and shall promptly pay the same over to Greenfield in precisely
the form received (except for the endorsement or assignment by the Principals
or such other person where necessary) to the extent
5.
necessary to pay the Senior Debt in full after giving effect to any
substantially concurrent payment or distribution to or for the benefit of
Greenfield in respect of the Senior Debt.
6. Notice of Default.
The Principals shall give to Greenfield notice forthwith of any
default by the Corporation of any of the Corporation's indebtedness, liability
or obligations to any of the Principals, which notice shall specify all then
existing defaults in respect of such indebtedness, liability or obligations
which are known to the Principals.
7. No Waiver of Subordination Provisions.
No right of Greenfield to enforce the postponements and
subordinations as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Corporation or by any
act or failure to act by Greenfield or any agent of or trustee for Greenfield,
or by any non-compliance by the Corporation with any of the agreements or
instruments relating to the Principal Debt, regardless of any knowledge thereof
which Greenfield may have or be otherwise charged with. Without limitations to
the foregoing, Greenfield may, at any time and from time to time, without the
consent of or notice to the Principals, without incurring responsibility to the
Principals and without impairing or releasing the postponements and
subordinations and other rights or benefits provided in this Agreement or the
obligations hereunder of the Principals to Greenfield, do any one or more of
the following:
(a) change the manner, place or terms of payment or change or extend the
time of payment of, or renew, exchange, amend or alter the terms of
any Senior Debt, any Senior Security or any guarantee thereof or any
liability of the Corporation, or any guarantor of the Senior Debt, or
any liability incurred directly or indirectly in respect thereof, or
otherwise increase, reduce, amend, alter, renew, exchange, modify or
supplement in any manner the Senior Debt or any instrument evidencing
or guaranteeing or securing the same or any agreement under which any
of the Senior Debt is outstanding;
(b) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner any assets pledged or mortgaged for
or otherwise securing the Senior
6.
Debt or any liability of the Corporation or any guarantor of the
Senior Debt, or any liability incurred directly or indirectly in
respect thereof,
(c) settle or compromise any Senior Debt or any other liability of the
Corporation or any guarantor of the Senior Debt, or any security
therefor or any liability incurred directly or indirectly in respect
thereof, and apply any sums by whomsoever paid and however realized
to any liability (including the Senior Debt) in any manner or order;
and
(d) fail to take or to register or otherwise perfect any lien, mortgage,
charge or security interest securing the Senior Debt, exercise or
delay in or refrain from exercising any right or remedy against the
Corporation or any guarantor of the Senior Debt or any security or any
other person, and elect any remedy and otherwise deal freely with the
Corporation and any guarantor of the Senior Debt and with any security.
8. Application of Payments.
All payments received by Greenfield may be applied, reversed and
reapplied, in whole or in part, to any of the Senior Debt, as Greenfield in its
sole discretion deems appropriate.
9. Waivers by The Principal.
All of the Senior Debt shall be deemed to have been made or incurred
and continued in reliance upon this Agreement. The Principals agree that
Greenfield has made no warranties or representations with respect to the due
execution, legality, validity, completeness, perfection or enforceability of any
agreement or instrument relating to the Senior Debt or the collectibility of the
Senior Debt, that Greenfield shall be entitled to manage and supervise its
financial accommodation to the Corporation in accordance with applicable law and
its usual practices, modified from time to time as it deems appropriate under
the circumstances, without regard to the existence of any rights that the
Principals (or any one or more of them) may now or hereafter have in or to any
of the assets of the Corporation, by virtue of the Principal Debt and that
Greenfield shall have no liability to the Principals (or any one or more of
them) for, and the Principals hereby collectively waive any claims which they
may now or hereafter have (in
7.
respect of the Principal Debt) against Greenfield arising out of, any and all
actions which Greenfield, may take or omit to take (including without limitation
actions with respect to the creation, attachment, perfection or continuation of
liens, mortgages, charges or security interests in any assets at any time
securing payment of the Senior Debt, actions with respect to the occurrence of
any default under any agreement or instrument relating to the Senior Debt,
actions with respect to the foreclosure upon, sale, release or depreciation of,
or failure to realize upon, any assets securing payment of the Senior Debt and
actions with respect to the collection of any claims for all or any part of the
Senior Debt from any account debtor, guarantor or any other person) with respect
to the Senior Debt and any agreement or instrument related thereto or with
respect to the collection of the Senior Debt or the valuation, use, protection
or release of any assets securing payment of the Senior Debt.
10. Written Waivers.
No waiver shall be deemed to be made by Greenfield or the Principals
of any of its or his rights hereunder, unless the same shall be in writing
signed by such party, and each waiver, if any, shall (unless specifically
expressed herein to be otherwise) be a waiver only with respect to the specific
instance involved and shall in no way impair the rights of such party or the
obligations of the other party in any other respect or at any other time.
11. Successors and Assigns.
The provisions of this Agreement shall be binding on and shall enure
to the benefit of Greenfield and the Principals and their respective
administrators, executors, heirs, trustees, successors and assigns. The
Principals shall not assign, sell or transfer the Principal Debt or the
Principal Security, or any part thereof, to any person, unless such person
agrees, by agreement in writing with and satisfactory to the Lender, to be
bound by the provisions of this Agreement.
12. Notices.
Any notice desired or required to be given under this Agreement shall
be in writing and shall be deemed to have been validly served, given or
delivered: (a) when sent, after receipt of confirmation of transmission by
facsimile, telex or similar transmission; (b) the next
8.
business day after deposit with a reputable overnight courier in Ontario with
all charges prepaid; or (c) when delivered, if hand delivered by messenger, all
of which shall be when properly addressed to the party to be notified and sent
to the address or number indicated as follows:
If to the Lender:
Greenfield Commercial Credit (Canada) Inc.
▇▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Chief Financial Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Greenfield Commercial Credit LLC
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Credit Manager
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Principals:
c/o Steelbank Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address of a party hereto as it may designate to the other
party hereto in the manner herein prescribed.
13. Entire Agreement; Severability.
This Agreement contains the entire postponement and subordination
agreement between the parties hereto with respect to the indebtedness,
liabilities and assets of the
9.
Corporation. If any of the provisions of this Agreement shall be held invalid
or unenforceable by any court having jurisdiction, this Agreement shall be
construed as if not containing those provisions, and the rights and obligations
of the parties hereto shall be construed and enforced accordingly.
14. Cumulative Rights.
The rights, powers and remedies under this Agreement shall be in
addition to all rights, powers and remedies given by virtue of any statute or
rule of law, or any agreement or instrument, all of which rights, powers and
remedies shall be cumulative and may be exercised successively or concurrently.
15. Information.
From time to time upon request therefor, each of the Principal and
Greenfield shall provide to the others such information with respect to the
Corporation and its indebtedness and liabilities as may be reasonably requested.
16. Governing Law.
This Agreement shall be governed by and construe in accordance with
the laws of Ontario and the federal laws of Canada applicable therein.
10.
17. Execution in Counterparts.
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and both of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement.
SIGNED, SEALED AND DELIVERED )
in the presence of: )
)
)
)
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Witness ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
)
/s/ [ILLEGIBLE] ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ) -------------------------------------------
Witness ) ▇▇▇▇▇ ▇▇▇▇▇▇
)
)
---------------------------- ) -------------------------------------------
Witness ) ▇▇▇▇ ▇▇▇▇▇▇▇
)
GREENFIELD COMMERCIAL CREDIT
(CANADA) INC.
By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: H. ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
TO: GREENFIELD COMMERCIAL CREDIT (CANADA) INC. ("GREENFIELD")
AND TO: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ (the "PRINCIPALS")
BORROWER'S AGREEMENT
IN CONSIDERATION of the extension of credit by Greenfield to the Corporation,
the Corporation hereby:
1. consents to the foregoing subordination agreement;
2. agrees that it will not make any payments to the Principal except as may be
expressly permitted by the foregoing Senior Security and the subordination
agreement;
3. agrees that it shall acquire no rights pursuant to the foregoing
subordination agreement;
4. agrees that in order to facilitate any subrogation rights arising pursuant
to the foregoing subordination agreement, no payments or distributions to
Greenfield of any cash or other assets to which the Principal would have
been entitled but for the provisions of the foregoing subordination
agreement, and no payments over pursuant to the provisions of the foregoing
subordination agreement made by the Principal to Greenfield shall, as
between the Corporation and its creditors (other than Greenfield be deemed
to be a payment or a distribution by the Corporation to or on account of
the Senior Debt. The Corporation shall, as between itself and such
creditors, continue to owe all such amounts as Senior Debt, it being
understood that this provision is solely for the purpose of facilitating
any subrogation rights arising in favour of the Principal pursuant to the
foregoing subordination agreement; and
5. agrees that each of Greenfield and the Principal may provide to the other
at any time and from time to time any information in its possession or
control in respect of the Corporation and its affairs including, without
limitation, notice of any default or impending default.
All words capitalized in this agreement shall have the meanings assigned to
them by the foregoing subordination agreement.
DATED as of the 14th day of May, 2004.
STEELBANK INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇, (without personal
Title: President liability whatsoever)