EXHIBIT 10.78
INTERCREDITOR AGREEMENT (XXXXXX TAX REFUND)
THIS INTERCREDITOR AGREEMENT (this "Agreement") is made as of
____________, 2002, by and among TRANSAMERICA COMMERCIAL FINANCE CORPORATION
("TCFC"), TMRC, L.L.P. ("Tracker"), GE Commercial Distribution Finance
Corporation ("GE") and Transamerica Commercial Finance Corporation as tax refund
agent ("the Tax Refund Agent").
THE PARTIES HERETO agree as follows:
1. DEFINED TERMS. For purposes of this Agreement the following
definitions shall apply:
(A) "Business Day" shall any day (other than a Saturday or Sunday) on
which the Federal Reserve Bank of Chicago is open for business.
(B) "Creditor" shall mean individually, and "Creditors" shall mean
collectively, each of GE, Tracker and TCFC, and their respective successors and
assigns.
(C) "Documents" shall mean the collectively, GE Loan Documents, the
Tracker Loan Documents and the TCFC Loan Documents.
(D) "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.
(E) "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.
(F) "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, 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.
(G) "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.
(H) "Lien" shall mean individually and "Liens" shall mean collectively
any and all liens, security interests, encumbrances, pledges, mortgages, chattel
mortgages or other interests.
(I) "Obligations " shall mean the GE Debt, the Tracker Debt and the
TCFC Debt.
(J) "Parent" shall mean Xxxxxx Boats & Motors, Inc.
(K) "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).
(L) "Recovery" shall have the meaning set forth in Section 11 of this
Agreement.
(M) "Security Interest" shall mean as to any item of tangible or
intangible property, any lien or interest therein or right (including an
assignment) with respect thereto, whether such interest or right is created
under a contract, note, bond, indenture, deed, mortgage, deed of trust, security
agreement, pledge, hypothecation agreement, assignment or other agreement or
arises by operation of law or statute (such as, but not limited to, a statutory
lien for work or materials or rights of setoff), as a result of a judgment, or
under any form of preferential or title retention agreement or arrangement
(including a conditional sale agreement or a lease) that has substantially the
same economic effect as any of the foregoing.
(N) "Tax Refund" shall mean all monies and claims from monies due
and/or to become due to Parent from the United States of America or any
department or agency thereof arising out of any application in the name of
Parent for an income tax refund for any tax year, filed or to be filed at any
time or from time to time by Parent with the Internal Revenue Service,
including, but not limited to, the application in the name of Parent for an
income tax refund for tax year 2002.
(O) "Tax Refund Agent Obligations" shall mean exclusive of all the
TCFC's Obligations, all obligations, liabilities, costs, expenses (including,
without limitations, any funds advanced for insurance premiums and/or protection
of the Tax Refund), reasonable expenses and reasonable fees arising from, or
incurred by, Tax Refund Agent when acting in such capacity, including, without
limitation, court costs and reasonable attorneys' and accountants' fees and
expenses and the fees of any special consultant assisting in pursuing Recovery
or any enforcement action with respect to the Tax Refund, all obligations of Tax
Refund Agent to indemnify any third party in connection with the Tax Refund or
acting as Tax Refund Agent, whether now existing or hereafter created, absolute
or contingent, and whether due or not due.
(P) "Tax Refund Security Documents" shall mean the agreements,
documents and instruments in favor of the Tax Refund Agent relating to the Tax
Refund securing the Obligations, as may be amended, replaced, supplemented
and/or restated from time to time.
(Q) "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.
(R) "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.
(S) "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.
(T) "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.
(U) "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.
(V) "Xxxxxx Obligors" shall mean collectively, the TCFC Obligors and
the GE Obligors.
(W) "Triggering Event": the occurrence of any of the following events:
(i) Tax Refund Agent's receipt of a written notice from the
Creditors directing Tax Refund Agent to exercise any remedy against all or any
part of the Tax Refund from and after the occurrence of an Event of Default that
has not been waived in writing, or
(ii) Any of the Xxxxxx Obligors (a) fails to pay, or admits in
writing its inability to pay, its debts generally as they become due, or
otherwise becomes insolvent (however evidenced), (b) makes an assignment for the
benefit of creditors, (c) files a petition in bankruptcy, is adjudicated
insolvent or bankrupt, petitions or applies to any tribunal for any receiver or
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any trustee for itself or any substantial part of its property, (d) commences
any proceeding relating to itself under any reorganization, arrangement,
readjustment of debt, dissolution (except into another Xxxxxx Obligor) or
liquidation law of any jurisdiction, whether now or hereafter in effect, (e) has
commenced against it any such proceeding which remains undismissed for a period
of 60 days, or by any act indicates its consent to, approval of, or acquiescence
in any such proceeding or the appointment of any receiver of or any trustee for
it or of any substantial part of its property, or allows any such receivership
or trusteeship to continue undischarged for a period of 60 days; or (f) takes
any action to authorize any of the foregoing;
(iii) the Tax Refund Agent's receipt of written notice from
any Creditor (which notice shall be given both via telecopy and overnight
courier (costs prepaid), with a good faith effort to make a telephone
confirmation of receipt of such notice promptly after sending, and a good faith
effort to send such notice by similar means to each other Creditor, but the
failure to notify the other Creditors will not affect whether any event set
forth in this definition shall have occurred) in respect to whom a payment of
principal or interest on any of the Obligations held by such Creditor was not
timely made (but only during the continuance of any such failure) after the
lapse of any grace period provided for under the relevant Documents, and whether
by acceleration or otherwise, or
(iv) from and after the occurrence of an Event of Default that
has not been waived in writing, any Creditor files suit against any of the
Xxxxxx Obligors with regard to the GE Debt, the Tracker Debt or TCFC Debt; or
(v) any Creditor accelerates any Obligations pursuant to the
terms of the relevant documents governing such Obligations.
(X) "UCC" shall mean the Uniform Commercial Code of the State of
Illinois, as such may be amended from time to time.
2. OTHER AGREEMENTS OF GE. GE represents, warrants and agrees that:
(A) it waives: (i) notice of the existence, creation, renewal,
extension of the TCFC Debt and/or the Tracker Debt (or any increase in the
amount of theTCFC Debt and/or the Tracker Debt); and (ii) any right to require
TCFC or Tracker to collect, enforce or realize upon the TCFC Debt;
(B) notwithstanding anything contained in the GE Loan Documents, the
Liens granted in favor of TCFC and/or Tracker shall not violate any negative
pledge covenants contained in the GE Loan Documents.
3. OTHER AGREEMENTS OF TCFC. TCFC represents, warrants and agrees:
(A) that it waives: (i) notice of the existence, creation, renewal,
extension of the GE Debt and/or the Tracker Debt (or any increase in the amount
of the GE Debt and/or the Tracker Debt thereof); and (ii) any right to require
GE or Tracker to collect, enforce or realize upon the GE Debt;
(B) notwithstanding anything contained in the TCFC Loan Documents, the
Liens granted in favor of GE and/or Tracker shall not violate any negative
pledge covenants contained in the TCFC Loan Documents.
4. OTHER AGREEMENTS OF TRACKER. Tracker represents, warrants and
agrees:
(A) that it waives: (i) notice of the existence, creation, renewal,
extension of the GE Debt and/or the TCFC Debt (or any increase in the amount of
the GE Debt and/or the TCFC Debt thereof); and (ii) any right to require GE or
TCFC to collect, enforce or realize upon the GE or TCFC debt;
(B) notwithstanding anything contained in the Tracker Loan Documents,
the Liens granted in favor of GE and/or TCFC shall not violate any negative
pledge covenants contained in the Tracker Loan Documents.
5. Appointment of TAX REFUND Agent. Each Creditor hereby appoints and
authorizes TCFC to act as Tax Refund Agent and TCFC hereby agrees to act as Tax
Refund Agent for the Creditors, as contemplated in the Tax Refund Security
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Documents and in this Agreement. Pursuant to the Tax Refund Security Documents,
Tax Refund Agent is granted a Security Interest in the Tax Refund for the
benefit of each Creditor. Each Creditor hereby authorizes and directs Tax Refund
Agent to enter into the Tax Refund Security Documents and any other instruments
incidental thereto and to execute, and record or file (as appropriate), all
financing statements, assignments, Tax Refund Security Documents, and other
filings and recordings in connection therewith.
6. Enforcement Rights of Creditors. No Creditor shall have any right to
exercise any rights or remedies with respect to the Tax Refund, and each
Creditor agrees with each other Creditor and Tax Refund Agent that it shall not,
and shall not attempt to, exercise any rights or remedies with respect to the
Tax Refund and all such rights and remedies shall only be exercised by or
through the Tax Refund Agent on behalf of the Creditors, whether pursuant to any
Document, the Tax Refund Security Document, agreement or otherwise; provided
however, that nothing in this Section shall prohibit Tax Refund Agent from
exercising any powers, rights and remedies expressly set forth under this
Agreement or under the Tax Refund Security Documents ; and provided further,
however, nothing contained in this Section shall prohibit a Creditor from
exercising any rights of setoff, subject to the terms of this Agreement. Nothing
contained herein shall limit or impair any Creditor's ability to (i) manage its
Obligations, (ii) accelerate all or any part of its respective Obligations, or
(iii) take any action with respect to, or against, the Parent, any of the Xxxxxx
Obligors, or their respective assets (other than the Tax Refund), including the
filing of any involuntary petition in bankruptcy.
7. Bankruptcy--Permitted Actions by Creditors. Notwithstanding anything
contained herein to the contrary: (i) each Creditor and Tax Refund Agent shall
be permitted to file its own proof of claim or other necessary documentation in
any bankruptcy or insolvency proceeding of the Parent or any of the Xxxxxx
Obligors and (ii) each Creditor and Tax Refund Agent shall be permitted, in its
sole and absolute discretion, to provide debtor-in-possession financing or any
other type of financing to Parent or any of the Xxxxxx Obligors after the Parent
or any of the Xxxxxx Obligors becomes (for whatever reason) subject to a
bankruptcy or insolvency proceeding (collectively "Post-Petition Financing");
provided, however, that nothing herein shall be deemed to be a waiver of any
right that any Creditor or Tax Refund Agent may have to object to the terms of
any such Post-Petition Financing.
8. Enforcement Rights and Powers of TAX REFUND Agent.
A. Tax Refund Agent (i) shall exercise, only with respect to the Tax
Refund after a Triggering Event and during the continuance thereof, and only
with the consent of, or direction by, all of the Creditors, all or some of the
rights and remedies (including, without limitation, all rights with respect to
any power of attorney designation) (A) available to it under the Tax Refund
Security Documents, (B) of GE under the GE Documents, Tracker under the Tracker
Documents, and TCFC under the TCFC Documents, and (C) in any case, available to
it at law or at equity, whether judicial or non-judicial, to the same extent as
if such rights and remedies were specifically enumerated herein, (ii) may
exercise, at any time, and from time to time, such powers and rights under this
Agreement as are specifically delegated or granted to Tax Refund Agent pursuant
to the terms hereof which by the terms hereof do not require the consent or
direction of the Creditor or the occurrence of a Triggering Event, and (iii) may
exercise, such powers, rights and remedies as are reasonably incident to the
powers specified in the foregoing clauses (i) and (ii) and subject, in the case
of clause (i), to the consent or direction of the Creditors. Tax Refund Agent
shall have no implied duties or any obligation to take any action under this
Agreement except any action specifically provided by this Agreement to be taken
by it. Notwithstanding anything in this Agreement to the contrary, if a
Triggering Event has previously occurred with respect to any specific set of
facts, no further notice of the occurrence of any further event with respect to
such specific set of facts is required of any party.
B. Notwithstanding clause 8 A(ii) above, at any time, without the
Creditors' consent, the Tax Refund Agent may, in its sole discretion, take such
action as the Tax Refund Agent believes in its commercially reasonable judgment
is reasonably necessary to preserve the Tax Refund or the value thereof, or
preserve, create or perfect its Security Interests (including priority thereof)
in the Tax Refund. Tax Refund Agent shall not be required to take any such
action but if it does take any such action it shall have no liability to any of
the Creditors and shall be fully indemnified and held harmless for any such
action as provided for herein and in the Tax Refund Security Documents, except
for the Tax Refund Agent's gross negligence or willful misconduct.
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9. Amendment to GE Documents, TCFC DOCUMETS and TRACKER Documents. GE
may enter into any amendment, modification or restatement of any GE Document,
without the consent of TCFC, Tracker or Tax Refund Agent. TCFC may enter into
any amendment, modification or restatement of any TCFC Document, without the
consent of GE, Tracker or Tax Refund Agent. Tracker may enter into any
amendment, modification or restatement of any Tracker Document, without the
consent of GE, TCFC or Tax Refund Agent.
10. Actions Requiring Consent of all Creditors. No amendment or
modification or waiver of any provision of this Agreement or any Security
Document shall be effective unless it is in writing and signed by Tax Refund
Agent and each of the Creditors.
Unless Tax Refund Agent and all Creditors consent in writing, neither
Tax Refund Agent nor any Creditor shall take, or attempt to take, any action
that would result in (i) the release of any interest of Tax Refund Agent or any
Creditor in the Tax Refund, or a material adverse affect on the rights or
remedies of the Tax Refund Agent or Creditors under the Documents with regard to
the Tax Refund; and (ii) the subordination of its interest in any of the Tax
Refund to, or placement of its interest in any of the Tax Refund on parity with,
the interests of any other Person. All reasonable costs, fees and expenses
incurred in connection with a release of Tax Refund, including all reasonable
legal fees and expenses of Tax Refund Agent, shall be paid by Parent.
11. Proceeds of TAX REFUND. All amounts, payments, property, and other
proceeds received by, or under Tax Refund Agent's control in respect of, the Tax
Refund, including, without limitation, insurance and condemnation proceeds,
distributions from any bankruptcy or reorganization proceedings or from any
liquidator or receiver of any nature whatsoever with regards to the Tax Refund,
and proceeds of the disposition of or arising out of any Tax Refund (a
"Recovery"), shall be promptly distributed by the Tax Refund Agent to GE,
Tracker and TCFC as set forth below. Each Creditor shall immediately pay over to
Tax Refund Agent, for the benefit of the Creditors, any Recovery received by
such Creditor.
Within three Business Days after the receipt of a Recovery by Tax
Refund Agent, Tax Refund Agent shall deduct the amount of the Tax Refund Agent
Obligations and all indemnification amounts due it hereunder and the Tax Refund
Security Documents, and distribute the balance of such Recovery to Creditors for
application to the Obligations in the following order of priority:
first, to reimburse Creditors for any costs and expenses and indemnity
obligations previously paid or advanced by such Creditors to the Tax Refund
Agent in respect of this Agreement or the Tax Refund;
second, 33 1/3% to GE, 33 1/3% to Tracker and 33 1/3% to TCFC to be
applied to the respective portion of their Obligations solely with respect to
loans made based solely on the Tax Refund..
third, so long as no Event of Default has occurred, any remaining
amounts shall be paid to Parent, the Xxxxxx Obligors, or such other Persons as
shall be legally entitled thereto, otherwise, 33 1/3% to GE, 33 1/3% to Tracker
and 33 1/3% to TCFC to be applied to their respective Obligations as they each
deem fit in their respective sole and absolute discretion.
12. No Impact on Parent's Obligations. Nothing contained herein shall
be deemed to affect the obligation of the Parent to timely pay (or any
Guarantor's obligation to timely pay) the TCFC Debt, the Tracker Debt and the GE
Debt as set forth in the respective Documents.
13. Returned Recovery. In the event any Creditor or Tax Refund Agent is
required by final order of any court of competent jurisdiction to pay to Parent,
any Guarantor, or any of their Subsidiaries, or any of their respective
successors or trustees, a Recovery that had originally been received by such
Creditor or Tax Refund Agent (a "Returned Recovery"), each other Creditor shall
return to Tax Refund Agent all payments such other Creditor received in respect
of the Recovery relating to such Returned Recovery for (i) payment of all or any
portion of such amount to Parent, a Guarantor, or any of their Subsidiaries, or
their respective successor or trustee, if applicable, or (ii) redistribution of
such amount by Tax Refund Agent, with GE receiving 33 1/3%, Tracker receiving 33
1/3% and TCFC receiving 33 1/3%, in each case, consistent with any such court
order. Such Creditor or Tax Refund Agent, as the case may be, shall provide
written notice to the other Creditors upon receipt of a final order of any court
requiring a Returned Recovery and each Creditor shall return all payments
required under this Section to Tax Refund Agent within five Business Days of
such notice.
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14. Representations and Warranties of TAX REFUND Agent and Creditors.
Each Creditor and Tax Refund Agent respectively represents and warrants to each
other Creditor and Tax Refund Agent (in the case of the other Creditors), but
not for the benefit of any other Person (including, without limitation, the
Parent, any Guarantor or any of their Subsidiaries), that:
A. Authorization; No Conflict. The execution and delivery of this
Agreement and the performance by it of its obligations under this Agreement are
within its corporate powers, and have been duly authorized by all necessary
corporate action.
B. Obligations and Tax Refund. Except as disclosed in the Documents or
otherwise in writing to the Creditors and the Tax Refund Agent, it has not
(other than indirectly through the Tax Refund Agent), prior to the date of this
Agreement, taken any Security Interest or other right in the Tax Refund.
C. Independent Determination of the Creditworthiness of Parent and The
Xxxxxx Obligors. Each creditor has independently, and without relying on any
other Creditor, and based on such documentation and information as it deems
appropriate, made loans to Parent and made its own credit analysis of Parent,
The Xxxxxx Obligors and their Subsidiaries and its decision to enter into this
Agreement. It acknowledges its obligation, independently and without reliance on
any other Creditor and based on such information and documentation as it deems
appropriate from time to time, to continue to make its analysis of the
creditworthiness of Parent, the Xxxxxx Obligors, and their Subsidiaries and its
decisions with respect to taking or not taking action under this Agreement.
D. Enforceability. This Agreement constitutes its legal, valid and
binding obligation enforceable against it in accordance with its terms, except
to the extent that the enforceability thereof against it may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by equitable principles of general application.
15. Certain Notices; Access to Information; Cooperation.
A. Notice of Payment Event of Default, Commencement of Action, Other
Event of Default. Each Creditor shall, within two Business Days of (i) providing
written notice to Parent or any Guarantor of an Event of Default involving the
nonpayment of principal or interest of the Parent's Obligations to such Creditor
use reasonable efforts to send written notice to each other Creditor and the Tax
Refund Agent (if different than such Creditor) of such Event of Default, and
(ii) commencing any action or proceeding against the Parent or any Guarantor,
use reasonable efforts to send written notice to each other Creditor (if
different than such Creditor) of the commencement of any such action or
proceeding; provided, however, if no written notice is given to each Creditor
and Tax Refund Agent of any such action or proceeding, each Creditor agrees to
use reasonable efforts to give notice to each other Creditor and Tax Refund
Agent (if different from such Creditor) within two Business Days of the
commencement of any such action or proceeding. In addition, each Creditor agrees
to use its reasonable efforts to send to each other Creditor and Tax Refund
Agent a copy of any written notice of a breach or Event of Default under such
Creditor's Documents, within two Business Days of sending such notice to the
Parent or any Guarantor. Notwithstanding the foregoing provisions of this
Section , no Creditor shall have liability to any other Creditor for failure to
provide any such notice (unless such failure was due to such Creditor's willful
misconduct).
B. Notice of Bankruptcy. Each Creditor agrees to make reasonable
efforts to give notice to each other Creditor and Tax Refund Agent (if different
from such Creditor) on the date of such Creditor having instituted or caused to
be instituted against the Parent or any Guarantor, any involuntary petition for
any form of relief under any provision of Xxxxx 00, Xxxxxx Xxxxxx Code, as
amended from time to time, or any other bankruptcy or insolvency law of any
jurisdiction.
C. Notice of Acceleration. Each Creditor shall, simultaneously with the
giving of written notice to the Parent or any Guarantor of an acceleration of
the Obligations owing to such Creditor under its respective Documents, give the
same notice to each of the other Creditors and the Tax Refund Agent (if
different from such Creditor); provided, however, if no written notice is given
to each Creditor and Tax Refund Agent, each Creditor agrees to use reasonable
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efforts to give notice to each other Creditor and Tax Refund Agent (if different
from such Creditor) within two Business Days of the acceleration of any of the
Obligations owed to it. Notwithstanding the foregoing provisions of this
Section, no Creditor shall have liability to any other Creditor for failure to
provide any such notice (unless such failure was due to such Creditor's willful
misconduct).
D. Notice of Cure of Certain Triggering Events. With respect to the
Creditor(s) who gave notice of the Triggering Event described in clause (iii) of
the definition of Triggering Event, such Creditor(s) shall, promptly upon a cure
of such event (if any) to the satisfaction of such Creditor, notify each other
Creditor and the Tax Refund Agent. If no other Triggering Event has occurred,
then the Triggering Event described in clause (iii) of such definition shall no
longer be in effect at the opening of business on the date of Tax Refund Agent's
receipt of such notice of cure from such Creditor. Nothing contained in this
Agreement shall require any Creditor to agree that any breach or Event of
Default under its Documents has been cured by the Parent.
E. Cooperation. At all times, each Creditor agrees to use its
commercially reasonable efforts to be reasonably available to the other
Creditors to discuss matters arising under this Agreement. Each Creditor shall
also use its commercially reasonable efforts to cooperate with Tax Refund Agent
and each other Creditor in connection with any and all enforcement efforts of
Tax Refund Agent with respect to the Tax Refund. Each Creditor agrees to use its
good faith reasonable efforts to be available to discuss and, if necessary, make
decisions regarding possible enforcement efforts or other actions with respect
to the Tax Refund.
16. Limitation of Liability. No Creditor assumes any responsibility for
the representations or warranties nor for the execution, validity or
enforceability of the respective Documents of any other Creditor, nor shall any
Creditor be under any obligation to any other Creditor to take any action to
protect, preserve or keep insured all or any portion of any of the Tax Refund.
17. Matters Relating to TAX REFUND Agent.
A. Duties of Tax Refund Agent. Tax Refund Agent shall be responsible
for the prosecution of all collection and enforcement efforts on behalf of the
Creditors against or in respect of Tax Refund, and in doing so shall follow the
instructions of all of the Creditors and act with the powers and rights granted
hereunder.
B. Compensation and Reimbursement of Fees and Expenses. All Tax Refund
Agent Obligations shall be reimbursed to Tax Refund Agent by Parent and
guarantied by the Xxxxxx Obligors. If Parent or the Xxxxxx Obligors fail to pay
any such Tax Refund Agent Obligations as provided for in the Tax Refund Security
Documents and the Documents, Tax Refund Agent shall be entitled to deduct the
amount of any such Tax Refund Agent Obligations from each Recovery before
distribution to Creditors. If at any time Tax Refund Agent is owed any Tax
Refund Agent Obligations, then Tax Refund Agent may demand that the Creditors
reimburse Tax Refund Agent for such amounts, with each Creditor liable for 33
1/3% of such total amount, and each Creditor agrees to promptly make such
payment to the Tax Refund Agent upon demand.
C. General Immunity. Neither Tax Refund Agent nor any of its directors,
officers, employees, attorneys, or agents shall be liable to any Creditor, its
officers, directors, employees, representatives, attorneys, or agents, for any
action taken or omitted to be taken by Tax Refund Agent hereunder or in
connection with this Agreement while acting in the capacity of Tax Refund Agent
in the absence of the gross negligence or willful misconduct of Tax Refund
Agent, as shall have been determined in a final non-appealable judgment of a
court of competent jurisdiction or in connection with a settlement by which the
Tax Refund Agent is bound.
D. No Responsibility for Other Agreements. Tax Refund Agent shall not
be responsible to any Creditor for any recitals, reports, statements,
representations, or warranties contained in any Documents or any of the
foregoing delivered by the Parent or any Guarantor from time to time, or made at
any time (whether in writing or orally) in connection with any of the Documents
or any and all instruments, agreements or documents executed, issued or
delivered pursuant thereto, or in connection therewith, or the truth or accuracy
of any of the foregoing. Tax Refund Agent shall not be bound to ascertain or
inquire as to the performance or observance of any of the terms thereof,
including, without limitation, the use by Parent of proceeds of any extension of
credit.
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E. Right to Indemnity. To the extent and as provided in this Agreement,
the Acknowledgement and Consent attached hereto, and in the Tax Refund Security
Documents, Tax Refund Agent shall be indemnified by Parent (and with the
Parent's indemnification obligation being guarantied by the Xxxxxx Obligors)
against Tax Refund Agent Obligations that may be incurred by Tax Refund Agent
from time to time, including, without limitation, by reason of taking, or
refraining from taking, any action under this Agreement or the Tax Refund
Security Documents. To the extent Parent and The Xxxxxx Obligors shall fail to
perform any such indemnity obligation to Tax Refund Agent promptly upon demand,
then each Creditor (without any further action by any such Creditor), agrees to
indemnify and hold harmless Tax Refund Agent from and against 33 1/3% of any
liability, obligation, claim, suit, judgment or expense, including legal fees,
court costs and costs of investigating and settling any claim or suit
(collectively, "Indemnifiable Claims") incurred, arising or alleged to have been
incurred or have arisen, in connection with an act or omission of Tax Refund
Agent in connection with its performance as Tax Refund Agent, unless arising out
of the gross negligence or willful misconduct of Tax Refund Agent and promptly
upon demand to pay such amounts to the Tax Refund Agent.
F. Action on Instructions. Tax Refund Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
of the Documents, if done or omitted in accordance with the instruction of all
of the Creditors, as applicable, and such instructions and any action taken, or
not taken, by Tax Refund Agent pursuant to such instructions shall be binding on
all of the Creditors.
G. Employment of Agents and Counsel. Tax Refund Agent may execute any
of its duties under this Agreement by or through employees, agents,
representatives, and attorneys-in-fact. Tax Refund Agent shall be entitled to
employ, rely upon, and receive advice of counsel (including counsel who are the
employees of Tax Refund Agent) concerning all matters pertaining to this
Agreement, including, without limitation, matters pertaining to the agency
hereby created.
H. Reliance on Documents and Counsel. Tax Refund Agent shall be
entitled to rely upon any notice, consent, waiver, amendment, certificate,
affidavit, letter, telecopy, telegram, statement, paper or document executed,
delivered or issued pursuant to, or in connection with, this Agreement or any of
the Documents, believed by it in good faith to be genuine and correct and to
have been signed or sent by the proper Person or Persons, and, in respect to
legal matters, upon the opinion of counsel (including counsel who are employees
of Tax Refund Agent) selected by Tax Refund Agent.
I. May Treat Payee as Owner. Tax Refund Agent may deem and treat the
signatories to this Agreement and the assignees thereof permitted under the GE
Agreement (in the case of the GE Debt) or permitted under the TCFC Agreement (in
the case of the TCFC Debt) and which, in the case of any assignee, has complied
with the terms of Section 18, as the owners of the Obligations, unless and until
a written notice of the assignment or transfer of such Obligations shall have
been received by Tax Refund Agent.
J. Rights as a Creditor. With respect to the Obligations, Tax Refund
Agent (if it is a Creditor), in its individual capacity as a Creditor, shall
have and may exercise the same rights and powers under this Agreement and its
Documents as any other Creditor has under this Agreement and its Documents. The
terms "Creditor" and "Creditors," shall include Tax Refund Agent in its
individual capacity as Creditor. Tax Refund Agent (if it is a Creditor), in its
individual capacity as a Creditor, may accept deposits from, lend money to, and
generally engage in any kind of banking or trust business with Parent, The
Xxxxxx Obligors or any of their Subsidiaries as if it were not Tax Refund Agent.
K. Resignation or Replacement of Tax Refund Agent. Tax Refund Agent at
any time may resign, effective upon thirty (30) days prior written notice
executed and delivered by Tax Refund Agent to each of the Creditors. Tax Refund
Agent may be removed at any time effective upon thirty (30) days' prior written
notice executed and delivered by duly authorized signatories of 2/3 of the
Creditors to Tax Refund Agent (a "Removal Notice"). Upon any such resignation or
removal, without any other formality, other than the appointment and designation
in writing of a replacement Tax Refund Agent as described herein, a copy of
which instrument or writing shall be sent to each of the Creditors and Tax
Refund Agent, Creditors may appoint a successor to Tax Refund Agent, which shall
be a financial institution or financial services entity (i) organized under the
laws of the United States of America or any state thereof, (ii) that has a
combined capital and retained earnings of not less than $500,000,000 and (iii)
whose long-term unsecured debt obligations are rated "A" by Xxxxx'x Investor
Service, Inc. and its successors, or "A" or higher by Standard & Poor's Ratings
Services, presently a division of The XxXxxx-Xxxx Companies, Inc., and its
Page 8 of 13
successors (or any equivalent rating if such ratings no longer exist). One or
more such appointments and designations of a successor Tax Refund Agent shall
not exhaust the right to appoint and designate further successor Tax Refund
Agents hereunder. Notwithstanding anything to the contrary contained in this
Section, the resigning or removed Tax Refund Agent shall be discharged and
released from its duties and obligations hereunder and such successor Tax Refund
Agent shall succeed to and become vested with all the rights, powers, privileges
and duties conferred hereby and by the other Documents upon the Tax Refund Agent
named herein, when all the Tax Refund held by the resigning or removed Tax
Refund Agent has been delivered to the successor Tax Refund Agent, such
successor Tax Refund Agent has executed and delivered to each Creditor an
instrument accepting such appointment and the resigning or removed Tax Refund
Agent and such successor Tax Refund Agent have executed and delivered such
filings, recordings and other instruments (including, without limitation, UCC-3
assignments) as are necessary to evidence the appointment of such successor Tax
Refund Agent. If no successor shall be appointed and approved on or prior to the
third (3rd) business day preceding the effective date of any such resignation or
removal, a resigning Tax Refund Agent may appoint a successor Tax Refund Agent
in accordance with the requirements above for appointment of a successor Tax
Refund Agent by Creditors or a removed or resigning Tax Refund Agent may apply
to any court of competent jurisdiction to appoint a successor to act until a
successor shall have been appointed by Required Creditors as above provided.
L. Authority to Represent Creditors. Whenever Tax Refund Agent shall
take any action provided by this Agreement to be taken by Tax Refund Agent on
behalf of Creditors or any Creditor, all Persons shall be entitled to assume
that Tax Refund Agent is fully authorized to act on behalf of Creditors or such
Creditor.
18. Subsequent Creditors. This Agreement shall be binding upon, and
inure to the benefit of and be enforceable by, the Creditors, each of their
respective successors, transferees and assigns and each person or entity that
purchases a participation in the Obligations. All Creditors, other than those
originally executing this Agreement, who hereafter become Creditors, whether as
a successor to a Creditor or by assignment of any interest in any of the
Obligations owed to any Creditor who is signatory to this Agreement on the date
of this Agreement, shall immediately upon becoming a successor thereof or as a
condition to the assignment of any such interest, as the case may be, agree in
writing to be bound by the terms hereof by executing a counterpart of this
Agreement. Each Creditor represents and warrants to the other Creditors and Tax
Refund Agent that as of the date hereof it has not sold any participation
interest in or pledged or otherwise collaterally assigned any interest in the
Obligations owed to it. Each Creditor agrees that it will not sell any
participation interest in or pledge or otherwise collaterally assign any
interest in such obligations unless such disposition is made subject to the
terms of this Agreement. GE hereby agrees that, upon request, it will promptly
enter into an agreement on substantially identical terms as this Agreement with
any Person that succeeds to or replaces TCFC or Tracker in providing a similar
type of financing to Borrower; TCFC hereby agrees that, upon request, it will
promptly enter into an agreement on substantially identical terms as this
Agreement with any Person that succeeds to or replaces the GE or Tracker in
providing a similar type of financing to Borrower. Tracker hereby agrees that,
upon request, it will promptly enter into an agreement on substantially
identical terms as this Agreement with any Person that succeeds to or replaces
the GE or TCFC in providing a similar type of financing to Borrower.
19. Repayment of TCFC, tracker and GE. In the event that either GE,
Tracker or TCFC are repaid in full, then the remaining Creditors may, at their
option, keep this Agreement in place so that the Tax Refund Agent shall remain,
or cause the Tax Refund Agent to assign its Security Interests to the remaining
Creditors (or their designees), all without affecting or impairing the Security
Interests, rights or remedies of Tax Refund Agent, including, without
limitation, the priority of such Security Interests.
20. Negotiated Transaction. Each Creditor, and the Tax Refund Agent
each represent to each other party hereto that in the negotiation and drafting
of this Agreement each has been represented by and has relied upon the advice of
counsel of its choice. Each Creditor and the Tax Refund Agent affirm that its
counsel has had a substantial role in the drafting and negotiation of this
Agreement; therefore, this Agreement will be deemed drafted by each of the
parties hereto, and the rule of construction to the effect that any ambiguities
are to be resolved against the drafter will not be employed in the
interpretation of this Agreement.
21. Relationship among Creditors; No Joint Venture. Except for purposes
of Tax Refund Agent perfecting its Security Interests in the Tax Refund in all
appropriate jurisdictions, notwithstanding anything to the contrary herein
contained or implied, no Creditor by this Agreement nor any action pursuant
hereto, shall be deemed to be a partner of, or joint venturer with, any other
Creditor or Tax Refund Agent, and each Creditor hereby agrees to defend against
any construction, judicial or otherwise, of the parties' relationship as such.
Page 9 of 13
22. No Third Party Rights. All of the understandings, agreements,
representations and warranties contained herein are solely for the benefit of
Creditors, and there are no other Persons, including, without limitation the
Parent or any of its Subsidiaries (including the Xxxxxx Obligors), who are
intended to be benefited, in any way whatsoever, by this Agreement. This
Agreement is solely for the benefit of the parties hereto and the Creditors, and
their respective successors and assigns, and no other Person (including, without
limitation, Parent or any Guarantor) has any right, benefit, priority or
interest under, or because of the existence of, this Agreement; consequently,
neither the Parent, the Xxxxxx Obligors nor any other Persons shall be entitled
to rely upon, or to raise as a defense, in any manner whatsoever, the provisions
of this Agreement or the failure of any Creditor to comply with such provisions.
23. This Agreement Controls over Conflicting AgreemenTS. With respect
to the parties hereto, in the event the terms of any other document or
agreement, including, without limitation, any Document, conflicts with the terms
of this Agreement, the applicable provision of this Agreement shall be deemed to
govern and control in all circumstances and in all respects.
24. Continuing Agreement. This Agreement shall constitute a continuing
agreement of subordination. TCFC, GE and Tracker may, with or without notice to
each other or any other Person and without in any way impairing or affecting
this Agreement: (A) lend monies, extend additional credit and make other
financial accommodations to or for the account of the Parent, the TCFC Obligors
or the GE Obligors (as appropriate) on the faith hereof; (B) enter into any such
agreement or agreements with the Parent, the TCFC Obligors or the GE Obligors
(as appropriate) as each may deem proper extending the time of payment or
renewing or otherwise altering the terms of any of the Tracker Debt, TCFC Debt
or the GE Debt, as applicable; or (C) assign, exchange, participate, sell,
surrender, or otherwise deal with the Tracker Loan Documents, the GE Loan
Documents or the TCFC Loan Documents (as appropriate) and any security for the
Tracker Debt, the TCFC Debt or the GE Debt, as applicable.
25. Waiver. No waiver shall be deemed to be made by any party to this
Agreement of any of rights hereunder unless same shall be in writing, and each
waiver, if any, shall be a waiver only with respect to the specific instance
involved and shall in no way impair the rights and/or the obligations of the
waiving party in any other respect or at any other time.
26. Binding Agreement; Entire Agreement; Governing Law. This Agreement
shall inure to the benefit of and be binding upon the executors, administrators,
personal representatives, successors and assigns of the parties to this
Agreement. This Agreement represents the entire agreement between the parties
with respect to the subject matter hereof. This Agreement shall be governed and
_______ in accordance with the laws of the State of Illinois.
27. Severability. If any provision of this Agreement or the application
thereof to any party or circumstance is held invalid or unenforceable, the
remainder of this Agreement and the application thereof to other parties or
circumstances will not affected thereby, the provisions of this Agreement begin
severable in any such instance.
28. Counterparts. This Agreement may be executed in counterparts, each
of which may be deemed an original but all of which shall constitute but one
instrument.
29. Notices. 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) day after such notice is sent by overnight courier to the intended
recipient thereof in accordance with the provisions of this Section 29. Unless
otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section 29 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:
Page 10 of 13
If to TCFC or Tax Refund Agent: Transamerica Commercial Finance
Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxx
Phone: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to: Xxxxxx Xxxxxx, Esq.
Levenfeld Xxxxxxxxxx
000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to GE: GE Commercial Distribution
Finance Corporation
0000 Xxxxxxxxx Xxxxx,
Xxxxx 000
Xxxx, XX 00000
Attn: X. Xxxxx & X. Xxxxxx
Phone: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to: GE Commercial Distribution
Finance Corporation
000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Attn: General Counsel
Phone: (000) 000-0000
Fax No.: (000) 000-0000
If to Tracker: TMRC, L.L.P.
c/o Tracker Marine LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Fax No.: (000) 000-0000
With a copy to: Gallop, Xxxxxxx & Xxxxxx, X.X.
000 Xxxxx Xxxxxx Xxxx,
Xxxxx 0000
Xx. Xxxxx, XX 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
30. JURISDICTION; WAIVER. THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT
IS BEING SIGNED BY IN PARTIAL CONSIDERATION OF THEIR RIGHT TO ENFORCE IN THE
JURISDICTION STATED BELOW THE TERMS AND PROVISIONS OF THIS AGREEMENT. ALL
PARTIES CONSENT TO JURISDICTION IN THE STATE OF ILLINOIS AND VENUE IN ANY
FEDERAL OR STATE COURT IN THE COUNTY OF XXXX FOR SUCH PURPOSES AND WAIVES ANY
AND ALL RIGHTS TO CONTEST SAID JURISDICTION AND VENUE AND ANY OBJECTION THAT
SAID COUNTY IS NOT CONVENIENT. AL PARTIES WAIVE ANY RIGHTS TO COMMENCE ANY
ACTION AGAINST IN ANY JURISDICTION EXCEPT THE AFORESAID COUNTY AND STATE. ALL
PARTIES 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 THIS AGREEMENT.
Page 11 of 13
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
Page 12 of 13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
TCFC: TRANSAMERICA COMMERCIAL FINANCE
CORPORATION
By:_________________________________
Title: Vice President
GE: GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION
By:________________________________
Title:______________________________
TRACKER: TMRC, L.L.P.
By: ________________________________
Title: _______________________________
Tax Refund Agent: TRANSAMERICA COMMERCIAL FINANCE
CORPORATION
By:________________________________
Title:_______________________________
Page 13 of 13
SCHEDULE I
TO
INTERCREDITOR AGREEMENT
GE Obligors and Locations
-------------------------
1. Xxxxxx Boats & Motors, Inc.
2. TBC Arkansas, Inc.
3. Xxxxxx Boating Center Arlington, Inc.
4. Xxxxxx Boating Center Beaumont, Inc.
5. Xxxxxx Boating Center Oklahoma, Inc.
6. Xxxxxx Boating Center Tennessee, Inc.
7. Xxxxxx Xxxxxxx Marine, Inc.
8. Falcon Marine, Inc.
9. Falcon Marine Abilene, Inc.
10. Xxxxxx Boating Center Alabama, Inc.
11. Xxxxxx Boating Center Louisiana, Inc.
12. Xxxxxx Boats & Motors Baton Rouge, Inc.
13. Xxxxxx Boating Center Mississippi, Inc.
14. Red River Marine Arkansas, Inc.
15. Xxxxxx Boating Center Little Rock, Inc.
16. Shelby Marine Center, Inc.
17. Shelby Marine Pickwick, LLC
SCHEDULE II
TO
INTERCREDITOR AGREEMENT
TCFC Obligors and Locations
---------------------------
1. Xxxxxx Boats & Motors, Inc.
2. Xxxxxx Boating Center Florida, Inc.
3. Xxxxxx Boating Center Georgia, Inc.
4. TBC Management, Inc.
5. TBC Management, Ltd.
6. Adventure Marine Center, Inc.
7. Adventure Marine South, Inc.
8. Adventure Boat Brokerage, Inc.
