Exhibit 10.41
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT ("Agreement") is made and entered into
by and between the undersigned, Xxxx Xxxxxxx (the "undersigned"), and Congress
Financial Corporation (Central) ("Lender"). Capitalized terms used herein which
are not defined herein are used herein as such terms are defined in the Loan and
Security Agreement dated as of January 20, 2000 (as amended, restated or
otherwise modified from time to time, the "Loan Agreement") between Lender and
Teardrop Golf Company (the "Debtor").
WITNESSETH:
WHEREAS, the Debtor is now indebted to the undersigned, pursuant to
that certain Amended and Restated Subordinated Convertible Demand Promissory
Note dated January 20, 2000 in the total initial principal amount of One Million
Dollars ($1,000,000) (which subordinated note, together with any instrument(s)
which may hereafter be substituted therefor under the terms of any agreement
between Debtor and the undersigned, are hereinafter referred to as the "Notes").
WHEREAS, Debtor shall be indebted to Lender as a result of loans to
be made by Lender to Debtor pursuant to the Loan Agreement; and
WHEREAS, the undersigned acknowledges that the loans or other
extensions of any financial accommodation or credit to Debtor by Lender are of
value to the undersigned;
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, receipt of
which is hereby acknowledged by the undersigned, and in order to induce Lender,
at its option, now or from time to time hereafter, to make loans or extend
credit or any other financial accommodation to or for the benefit of Debtor; or
to grant such renewals or extensions thereof as Lender may deem advisable; and
to better secure Lender in respect of the foregoing, the undersigned hereby
agrees with Lender as hereinafter set forth.
As used herein the following terms shall have the meanings set forth
below:
"Bankruptcy Code" shall mean Title 11 of the United States Code (11
U.S.C. 101 et. seq.) or any replacement or supplemental federal statute dealing
with the bankruptcy of debtors.
"Borrower" shall mean individually and collectively, each Debtor and
any successor or assign of any Debtor, including, without limitation, a
receiver, trustee or debtor-in-possession of or for any Debtor.
"Senior Obligations" shall mean the Obligations (as defined in the
Loan Agreement) and all interest and costs of enforcement or preservation and
protection of collateral which may at any time accrue with respect to the
Obligations or which would accrue but for the operation of any provision or
doctrine with respect to the Bankruptcy Code and any obligations of, advances
made to or claims against Borrower pursuant to or with respect to any financing
or extension of credit provided to Borrower by Lender pursuant to Section 363 or
364 of the Bankruptcy Code.
"Subordinated Debt" shall mean any principal, interest, fees or
other monies which may now or hereafter be owing by Borrower to the undersigned
or be owing by any other person, firm, partnership or corporation to the
undersigned for the benefit of Borrower (whether such amounts represent
principal or interest, or obligations which are due or not due, direct or
indirect, absolute or contingent) including, without limitation, the Notes and
any negotiable instruments evidencing such amounts.
1. Standby; Subordination; Subrogation. The payment and performance
of the Subordinated Debt is hereby subordinated to the Senior Obligations and
the undersigned will not ask, demand, xxx for, take or receive from Borrower by
setoff or in any other manner, the whole or any part of the Subordinated Debt
which may now or hereafter be owing by Borrower and will not take any negotiable
instruments evidencing such amounts, nor any security (including guaranties and
third party credit support) for any of the foregoing, unless and until all such
Senior Obligations of Borrower whether now existing or hereafter arising
directly between Borrower and Lender, and whether such Senior Obligations arise
after the Borrower or the Borrower's estate becomes the subject of proceedings
under the Bankruptcy Code or whether such Senior Obligations are acquired
outright, conditionally or as collateral security from another by Lender, shall
have been fully paid and satisfied with interest, including interest on any
loans or advances made to the Borrower after the Borrower or the Borrower's
estate becomes the subject of proceedings under the Bankruptcy Code and all
commitments under the Loan Agreement have expired or been terminated. All liens
and security interests of the undersigned, whether now or hereafter arising and
howsoever existing, in any assets of Borrower or any assets securing any of the
Senior Obligations shall be and hereby are subordinated to the rights and
interests of Lender in those assets; the undersigned shall have no right to
possession of any such assets or to foreclose upon any such assets, whether by
judicial action or otherwise, unless and until all of the Senior Obligations
shall have been fully paid and satisfied and all commitments under the Loan
Agreement have expired or been terminated. The undersigned also hereby agrees
that, regardless of whether any of the Senior Obligations are secured or
unsecured, Lender shall be subrogated for the undersigned with respect to the
undersigned's claims against Borrower and the undersigned's rights, liens and
security interests, if any, in any of Borrower's assets and the proceeds thereof
until all of the Senior Obligations have been fully paid and satisfied and all
commitments under the Loan Agreement have expired or been terminated. In the
event, at the request of Borrower, Lender releases any of its security for any
of the Senior Obligations which constitutes part or all of the security for the
Subordinated Debt, the undersigned shall thereupon execute and deliver to
Borrower such termination statements and releases as the Borrower shall
reasonably request to release the undersigned's security interest in or lien
against such property of Borrower. The undersigned acknowledges and agrees that,
to the extent the terms and
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provisions of either this Agreement or the Loan Agreement are inconsistent with
the Notes, the Notes shall be deemed to be subject to the Loan Agreement and
this Agreement.
2. Payment of Interest and Principal. (a) Notwithstanding any other
provision of this Agreement, the undersigned shall be entitled to collect
interest on the Subordinated Debt that accrues from and after the date hereof
and is payable at the non-default rate specified in the Notes (which rate shall
in no event exceed the rate set forth in the Notes as of the date hereof),
provided that such right shall automatically be suspended, without the necessity
of Lender providing the undersigned with any notice, at any time there exists an
Event of Default (as defined in the Loan Agreement) under the terms of the Loan
Agreement (which has not been waived).
(b) Notwithstanding any other provision of this Agreement, upon ten
(10) days' prior written notice to Lender by Borrower, Borrower shall be
entitled to pay, and the undersigned shall be entitled to collect, the principal
amount on the Subordinated Debt not to exceed $1,000,000 at any time that Lender
has determined in its sole discretion that all three of the following conditions
have been satisfied: (i) no Event of Default exists before and immediately after
giving effect to such payment or would result from allowing such payment, (ii)
Borrower shall have Excess Availability (as defined in the Loan Agreement) of at
least $1,000,000 after giving effect to such payment and (iii) Borrower shall
have received either (a) a subordinated loan of $1,000,000 on terms and
conditions acceptable to Lender which shall be subject to a Subordination
Agreement acceptable to Lender or (b) a cash equity investment in Borrower of at
least $1,000,000 on terms and conditions acceptable to Lender. For purposes of
determining whether the Excess Availability test has been satisfied on any
payment date, Borrower and the undersigned shall assume that such payment will
be funded only after payment of any amounts owing by Borrower to Lender.
3. Enforcement Rights. The undersigned, prior to the payment in full
of the Senior Obligations and the termination of all financing arrangements
between Borrower and Lender, shall have no right to enforce any claim with
respect to the Subordinated Debt, or otherwise to take any action against
Borrower or Borrower's property without the prior written consent of Lender,
except for claims for interest and/or principal to which the undersigned is
entitled pursuant to Section 2 hereof.
4. Subordinated Debt Owed Only to the Undersigned. The undersigned
warrants and represents that the undersigned has not previously assigned any
interest in the Subordinated Debt or any security interest in connection
therewith, that no other person, firm or corporation owns an interest in the
Subordinated Debt or security therefor other than the undersigned (whether as
joint holders of the Subordinated Debt, participants or otherwise) and that the
entire Subordinated Debt is owing only to the undersigned and covenants that the
entire Subordinated Debt shall continue to be owing only to the undersigned and
all security therefor shall continue to be held solely for the benefit of the
undersigned unless assigned in accordance with the terms of this Agreement.
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5. Lender Priority. In the event of any 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 Borrower or the proceeds
thereof to the creditors of Borrower or readjustment of the Senior Obligations
and Subordinated Debt of Borrower, whether by reason of liquidation, bankruptcy,
arrangement, receivership, assignment for the benefit of creditors or any other
action or proceeding involving the readjustment of all or any part of the Senior
Obligations or the Subordinated Debt, or the application of the assets of
Borrower to the payment or liquidation thereof, or upon the dissolution or other
winding up of Borrower's business, or upon the sale of all or substantially all
of Borrower's assets, then, and in any such event, (i) Lender shall be entitled
to receive payment in full of any and all of the Senior Obligations then owing
prior to the payment of all or any part of the Subordinated Debt, and (ii) any
payment or distribution of any kind or character, whether in cash, securities or
other property, which shall be payable or deliverable upon or with respect to
any or all of the Subordinated Debt shall be paid or delivered directly to
Lender for application on any of the Senior Obligations, due or not due, until
such Senior Obligations shall have first been fully paid and satisfied.
6. Payments Received by the Undersigned. Except for claims for
interest and principal to which the undersigned is entitled pursuant to Section
2 hereof, should any payment or distribution or security or instrument or
proceeds thereof be received by the undersigned upon or with respect to the
Subordinated Debt or any other obligations of Borrower to the undersigned prior
to the satisfaction of all of the Senior Obligations and termination of all
financing arrangements between Borrower and Lender, the undersigned shall
receive and hold the same in trust, as trustee, for the benefit of Lender, and
shall forthwith deliver the same to Lender, in precisely the form received
(except for the endorsement or assignment of the undersigned where necessary),
for application on any of the Senior Obligations, due or not due, and, until so
delivered, the same shall be held in trust by the undersigned as the property of
Lender. In the event of the failure of the undersigned to make any such
endorsement or assignment to Lender, Lender, or any of its officers or
employees, is hereby irrevocably authorized to make the same.
7. Instrument Legend. Any instrument evidencing any of the
Subordinated Debt (including, without limitation, the Notes), or any portion
thereof, will, on the date hereof or promptly hereafter, be inscribed with a
legend conspicuously indicating that payment thereof is subordinated to the
claims of Lender pursuant to the terms of this Agreement, and (i) a copy thereof
will be delivered to Lender on the date hereof, and (ii) the original of any
such instrument will be immediately delivered to Lender upon request therefor by
Lender after the occurrence of an Event of Default (as defined in the Loan
Agreement) or if Lender at any time determines, in its sole discretion, that the
financial condition of the undersigned is or becomes such that Lender wishes to
have such possession to protect Lender's interest hereunder. Any instrument
evidencing any of the Subordinated Debt, or any portion thereof, which is
hereafter executed by Borrower, will, on the date thereof, be inscribed with the
aforesaid legend and a copy thereof will be delivered to Lender on the date of
its execution or within five (5) business days thereafter and the original
thereof will be delivered as and when described hereinabove.
8. Assignment of Claims. The undersigned agrees that until the
Senior Obligations have been paid in full and satisfied and all financing
arrangements between
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Borrower and Lender have been terminated, the undersigned will not assign or
transfer to others any claim the undersigned has or may have against Borrower,
unless such assignment or transfer is made expressly subject to this Agreement.
9. Continuing Nature of Subordination. This Agreement shall be
effective and may not be terminated or otherwise revoked by the undersigned
until the Senior Obligations shall have been fully discharged and all
commitments under the Loan Agreement have been terminated. In the event the
undersigned shall have any right under applicable law otherwise to terminate or
revoke this Agreement which right cannot be waived, such termination or
revocation shall not be effective until written notice of such termination or
revocation, signed by the undersigned, is actually received by Lender's officer
responsible for such matters. In the absence of the circumstances described in
the immediately preceding sentence, this is a continuing agreement of
subordination and Lender may continue, at any time and without notice to the
undersigned, to extend credit or other financial accommodations and loan monies
to or for the benefit of Borrower on the faith hereof. Any termination or
revocation described hereinabove shall not affect this Agreement in relation to
(a) any of the Senior Obligations which arose prior to receipt thereof, (b) any
of the Senior Obligations which represent interest on Senior Obligations, or (c)
any of the Senior Obligations created after receipt thereof, if such Obligations
were incurred either through extensions of credit by Lender pursuant to Lender's
financing arrangements with Borrower in an aggregate outstanding amount not to
exceed the Credit Limit, and/or for the purpose of preserving or protecting any
collateral (including, but not limited to, all protective advances, costs,
expenses) and/or for attorneys' and paralegals' fees, whensoever made, advanced
or incurred by Lender in connection with the Senior Obligations. If, in reliance
on this Agreement, Lender makes loans or other advances to or for the benefit of
Borrower or takes other action under the Loan Agreement after such aforesaid
termination or revocation by the undersigned but prior to the receipt by Lender
of said written notice as set forth above, the rights of Lender shall be the
same as if such termination or revocation had not occurred; and, in any event,
no obligation of the undersigned hereunder shall be affected pursuant to this
Section 9 by the death, incapacity or written revocation of the undersigned or
any other subordinated party, pledgor, endorser, or guarantor, if any.
10. Additional Agreements Between Lender and Borrower. Lender, at
any time and from time to time, either before or after any such aforesaid notice
of termination or revocation, may enter into such agreement or agreements with
Borrower as Lender may deem proper, extending the time of payment of or renewing
or otherwise altering the terms of all or any of the Senior Obligations or
affecting the security underlying any or all of the Senior Obligations, and may
exchange, sell, release, surrender or otherwise deal with any such security,
without in any way thereby impairing or affecting this Agreement.
11. Undersigned's Waivers. All of the Senior Obligations shall be
deemed to have been made or incurred in reliance upon this Agreement. The
undersigned expressly waives all notice of the acceptance by Lender of the
subordination and other provisions of this Agreement and all other notices not
specifically required pursuant to the terms of this Agreement whatsoever, and
the undersigned expressly waives reliance by Lender upon the subordination and
other agreements as herein provided. The undersigned agrees that Lender has made
no
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warranties or representations with respect to the due execution, legality,
validity, completeness or enforceability of the Loan Agreement, or the
collectibility of the Senior Obligations, that Lender shall be entitled to
manage and supervise its loans, extensions of credit or other financial
accommodations to Borrower in accordance with applicable law and Lender's usual
practices, modified from time to time as Lender deems appropriate under the
circumstances, without regard to the existence of any rights that the
undersigned may now or hereafter have in or to any of the assets of Borrower,
and that Lender shall have no liability to the undersigned for, and waives any
claim which the undersigned may now or hereafter have against, Lender arising
out of any and all actions which Lender, in good faith, takes or omits to take
(including, without limitation, actions with respect to the creation, perfection
or continuation of liens or security interests in the Collateral (as defined in
the Loan Agreement) and other security for the Senior Obligations, actions with
respect to the occurrence of an Event of Default, actions with respect to the
foreclosure upon, sale, release, or depreciation of, or failure to realize upon,
any of the Collateral and actions with respect to the collection of any claim
for all or any part of the Senior Obligations from any account debtor, guarantor
or any other party) with respect to the Loan Agreement or any other agreement
related thereto or to the collection of the Senior Obligations or the valuation,
use, protection or release of the Collateral and/or other security for the
Senior Obligations.
12. Bankruptcy Issues. If Borrower or Borrower's estate becomes the
subject of proceedings under the Bankruptcy Code and if Lender desires to permit
the use of cash collateral or to provide financing to Borrower under either
Section 363 or Section 364 of the Bankruptcy Code, the undersigned agrees that
adequate notice of such financing to the undersigned shall have been provided if
the undersigned received notice two (2) business days prior to the entry of any
order approving such cash collateral usage or financing. Notice of a proposed
financing or use of cash collateral shall be deemed given upon the sending of
such notice by telegraph, telecopy or hand delivery to the undersigned at the
address indicated above. All allocations of payments between Lender and the
undersigned shall, subject to any court order, continue to be made after the
filing of a petition under the Bankruptcy Code on the same basis that the
payments were to be allocated prior to the date of such filing. In the event
that the undersigned has or at any time acquires any security for the
Subordinated Debt, the undersigned agrees not to assert any right it may have to
"adequate protection" of its interest in such security in any bankruptcy
proceeding and agrees that it will not seek to have the automatic stay lifted
with respect to such security, without the prior written consent of Lender. The
undersigned waives any claim or defense the undersigned may now or hereafter
have arising out of the election by Lender, in any proceeding instituted under
Chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of
the Bankruptcy Code, and/or any borrowing or grant of a security interest under
Section 364 of the Bankruptcy Code by Borrower, as debtor-in-possession. To the
extent that Lender receives payments on, or proceeds of collateral for, the
Senior Obligations which are subsequently invalidated, declared to be fraudulent
or preferential, set aside and/or required to be repaid to a trustee, receiver
or any other party under any bankruptcy law, state or federal law, common law,
or equitable cause, then, to the extent of such payment or proceeds received,
the Senior Obligations, or part thereof, intended to be satisfied shall be
revived and continue in full force and effect as if such payments or proceeds
had not been received by Lender.
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13. Lender's Waivers. No waiver shall be deemed to be made by Lender
of its rights hereunder, unless the same shall be in writing signed on behalf of
Lender 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 of Lender or
the obligations of the undersigned to Lender in any other respect at any other
time.
14. Subrogation Rights of the Undersigned. Upon payment in full and
satisfaction of all the Senior Obligations, the undersigned shall be subrogated
to the rights of Lender to receive payments and distributions of cash, property
and securities applicable to the Senior Obligations to the extent that
distributions otherwise payable to the undersigned have been applied to the
Senior Obligations, until all amounts payable under the Subordinated Debt shall
have been paid in full. For purposes of such subrogation, no payments or
distributions to Lender of any cash, property or securities to which the
undersigned would be entitled except for the provisions of this Agreement, and
no payment pursuant to the provisions of this Agreement to Lender by the
undersigned shall, as among Borrower and its creditors other than Lender, be
deemed to be a payment or distribution by Borrower to or on account of the
Senior Obligations.
15. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
16. Headings. The headings contained in this Agreement are and shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto.
17. Authority. The undersigned hereby certifies that it has all
necessary authority to grant the subordination evidenced hereby and to execute
this Agreement on behalf of the undersigned.
18. Binding Effect. This Agreement shall be immediately binding upon
the undersigned and its successors and assigns, and shall inure to the benefit
of the successors and assigns of Lender.
19. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS AND ANY DISPUTE ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE
UNDERSIGNED AND LENDER IN CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING IN
CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE
INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS) AND DECISIONS OF
THE STATE OF ILLINOIS.
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(b) EXCEPT AS PROVIDED IN THE NEXT PARAGRAPH, THE UNDERSIGNED AND
LENDER AGREE THAT ALL DISPUTES BETWEEN THEM ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY,
OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR FEDERAL COURTS LOCATED IN
CHICAGO, ILLINOIS, BUT THE UNDERSIGNED AND LENDER ACKNOWLEDGE THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO,
ILLINOIS. THE UNDERSIGNED WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS.
(c) THE UNDERSIGNED AGREES THAT LENDER SHALL HAVE THE RIGHT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE UNDERSIGNED OR ITS
PROPERTY IN A COURT IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH TO ENABLE
LENDER TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF LENDER. THE UNDERSIGNED AGREES THAT IT WILL NOT ASSERT
ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY LENDER TO REALIZE ON
SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF LENDER.
THE UNDERSIGNED WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT IN WHICH LENDER HAS COMMENCED A PROCEEDING DESCRIBED IN THIS PARAGRAPH
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS.
(d) THE UNDERSIGNED AND LENDER EACH WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT.
INSTEAD, ANY DISPUTES RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL
WITHOUT A JURY.
[Signature Page Follows]
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IN WITNESS WHEREOF, this instrument has been signed and sealed this
20th day of January 2000.
/s/ Xxxx Xxxxxxx
------------------------------
Xx. Xxxx Xxxxxxx, individually
Teardrop Golf Company hereby accepts, and acknowledges receipt of a
copy of, the foregoing Subordination Agreement (the "Agreement") this __ day of
January, 2000, and agrees that it will not pay any of the Subordinated Debt (as
such term is defined in the Agreement) or grant any security therefor, except as
the Agreement provides. In the event of a breach by the undersigned of any of
the provisions herein, or by the holder of any Subordinated Debt of any of the
provisions of the Agreement, all of the Senior Obligations (as such term is
defined in the Agreement) shall, without presentment, demand, protest or notice
of any kind, become immediately due and payable, unless Lender shall otherwise
elect in writing.
TEARDROP GOLF COMPANY
By:/s/ Xxxx Xxxxxxx
----------------------------
Its: President
[Signature Page To Subordination Agreement]
