EXHIBIT 10.4
SUBORDINATION AGREEMENT
SUBORDINATION AGREEMENT dated as of December___, 2003, by and among
Transamerica Commercial Finance Corporation, as agent ("Agent") for Transamerica
Commercial Finance Corporation and Deutsche Financial Services Corporation, now
known as GE Commercial Distribution Finance Corporation having an address at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇ FUNDING, INC.
and ANGLO FINANCIAL SERVICING, LLC, as co-agents for lenders (collectively,
"KFI"), having an address at c/o Kennedy Funding, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, ▇▇▇▇▇▇ BOATING CENTER OF OKLAHOMA, INC., (the "Borrower") is now
indebted to KFI in an amount of Five Million Three Hundred Thousand and 00
($5,300,000.00) Dollars (the "KFI Debt"); and
WHEREAS, Borrower has requested, and may from time to time hereafter
request, KFI to make or agree to make loans, extensions of credit or other
financial accommodations to Borrower (the "Loans"); and
WHEREAS, Borrower has pledged to Agent liens on the real property described
on Exhibit A attached hereto and made a part hereof ("Mortgaged Property").
WHEREAS, KFI, as a condition to the making or continuation of the Loans,
has requested Agent to execute and deliver this Subordination Agreement
(together with all schedules and any exhibits attached hereto and amendments or
modifications hereto in effect from time to time, the "Agreement").
NOW, THEREFORE, in order to induce KFI to make, or continue to make the
Loans to Borrower and in consideration thereof, the parties agree as follows:
1. Subordination of Liens on Mortgaged Property. Agent's liens in and to
the Mortgaged Property, including, but not limited to, a Mortgage from
▇▇▇▇▇▇ Boating Center of Oklahoma, Inc., to Transamerica Commercial
Finance Corporation as collateral agent for Transamerica Commercial
Finance Corporation and Deutsche Financial Services Corporation dated
May 8, 2002 and recorded in Book 1533 Page 526, are hereby immediately
made subordinate, junior and postponed in priority and effect to the
priority and effect of the security interest created by all mortgages
and deeds of trust on the Mortgaged Property given by Borrower to KFI,
together with all amendments, modifications, renewals, or extensions
thereof, to the extent of the principal amount of the KFI Loans, plus
interest accrued, late charges and out of pocket expenses of KFI
relating to the enforcement of KFI's mortgages and deeds of trust on
the Mortgaged Property, as if KFI's liens on the Mortgaged Property
had been perfected by timely filing of mortgages and/or deeds of trust
prior to the time the liens of Agent with respect to the Mortgaged
Property were perfected. Agent agrees to execute and deliver to KFI
all subordinations of lien, in form and manner satisfactory to KFI and
Agent, necessary to effectuate the purposes of this paragraph and this
Agreement.
2. Notices. Notices and communications under this Agreement shall be in
writing and shall be given by (i) hand-delivery or (ii) reliable
overnight commercial courier (charges prepaid) to the addresses listed
in this Agreement. Notice by overnight courier shall be deemed to have
been given and received on the date scheduled for delivery. Notice by
hand-delivery shall be deemed to have been given and received upon
delivery. A party may change its address by giving written notice to
the other party as specified herein.
3. Costs and Expenses. Whether or not the transactions contemplated by
this Agreement are fully consummated, Borrower shall promptly pay (or
reimburse, as KFI may elect) all costs and expenses which KFI has
incurred or may hereafter incur in connection with the negotiation,
preparation, reproduction, interpretation, perfection, protection of
collateral, administration and enforcement of this Agreement, the
collection of all amounts due under this Agreement, and all
amendments, modifications, consents or waivers, if any, to this
Agreement. The Borrower's reimbursement obligations under this
Paragraph shall survive any termination of this Agreement.
4. Governing Law. This Agreement shall be construed in accordance with
and governed by the substantive laws of the State of Illinois without
reference to conflict of laws principles.
5. Integration; Amendment. This Agreement constitute the sole agreement
of the parties with respect to the subject matter hereof and thereof
and supersede all oral negotiations and prior writings with respect to
the subject matter hereof and thereof. No amendment of this Agreement,
and no waiver of any one or more of the provisions hereof shall be
effective unless set forth in writing and signed by the parties
hereto.
6. Successors and Assigns. This Agreement (i) shall be binding upon
Agent, Borrower and KFI and, where applicable, their respective heirs,
executors, administrators, successors and permitted assigns, and (ii)
shall inure to the benefit of Agent, Borrower and KFI and, where
applicable, their respective heirs, executors, administrators,
successors and permitted assigns; provided, however, that Agent and
Borrower may not assign their rights or obligations hereunder or any
interest herein without the prior written consent of KFI, and any such
assignment or attempted assignment by Agent and/or Borrower shall be
void and of no effect with respect to KFI. KFI may from time to time
sell or assign, in whole or in part, or grant participations in the
KFI Debt and the Loans and/or the Agreement and/or the obligations
evidenced thereby. Agent authorizes KFI to provide information
concerning this Agreement to any prospective purchaser, assignee or
participant.
7. Severability and Consistency. The illegality, unenforceability or
inconsistency of any provision of this Agreement or any instrument or
agreement required hereunder shall not in any way affect or impair the
legality, enforceability or consistency of the remaining provisions of
this Agreement or any instrument or agreement required hereunder.
8. Judicial Proceedings; Waivers. AGENT, BORROWER AND KFI ACKNOWLEDGE AND
AGREE THAT (I) ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR
COUNTERCLAIM, BROUGHT OR INSTITUTED BY KFI, AGENT, BORROWER OR ANY
SUCCESSOR OR ASSIGN OF KFI OR AGENT OR BORROWER, ON OR WITH RESPECT TO
THIS AGREEMENT OR THE DEALINGS OF THE PARTIES WITH RESPECT HERETO,
SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY AND EACH PARTY WAIVES
THE RIGHT TO TRIAL BY JURY; (II) EACH WAIVES ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES; AND (III) THIS SECTION IS A
SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND KFI WOULD NOT
EXTEND CREDIT IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART
OF THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, as of the day and year first above written.
ATTEST/WITNESS: Transamerica Commercial Finance Corporation,
as agent for Transamerica Commercial Finance
Corporation and Deutsche Financial Services
Corporation, now known as GE Commercial
By:_______________________ Distribution Finance Corporation
By:_______________________________
Name:
Title:
WITNESS: ▇▇▇▇▇▇▇ FUNDING, INC., as co-agents for
lenders
By:________________________ By:_______________________________
Name:
Title:
ATTEST/WITNESS: ANGLO FINANCIAL SERVICING, LLC, as co-agents
for lenders
By:________________________ By:_______________________________
Name:
Title:
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The Borrower hereby acknowledges receipt of a copy of the foregoing
Agreement, waives notice of acceptance thereof by KFI, and agrees to be bound by
the terms and provisions thereof. The Borrower further agrees to make no
payments or distributions contrary to the terms and provisions of this Agreement
and to do every other act and thing necessary or appropriate to carry out such
terms and provisions. In the event of any violation of any of the terms and
provisions of this Agreement or termination thereof, then, at the election of
KFI, any and all of the KFI Debt and the Loans, as that term is defined in this
Agreement, shall forthwith become due and payable.
Dated: December ___, 2003
WITNESS: ▇▇▇▇▇▇ BOATING CENTER OKLAHOMA, INC.
___________________________ By:_________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary and Treasurer
STATE OF _____________ )
)
COUNTY OF _____________ )
On the _____ day of December 2003, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, who being by me duly sworn, did acknowledge, depose and said that he
signed, sealed and delivered this instrument as Secretary and Treasurer of
▇▇▇▇▇▇ Boating Center Oklahoma, Inc., a Texas Corporation, on behalf of said
corporation.
____________________________
Notary Public
PREPARED BY AND, AFTER
RECORDING, RETURN TO:
Cole, Schotz, Meisel, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.
Court Plaza North
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
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EXHIBIT A
MORTGAGED PROPERTY