EXHIBIT 10.12
INTERCREDITOR AND SUBORDINATION AGREEMENT
INTERCREDITOR AND SUBORDINATION AGREEMENT dated as of March 15,
2002, among XXXX FINANCE CO, LLC, a Delaware limited liability company
("Subordinated Creditor"), HOLIDAY RV SUPERSTORES, INC., a Delaware corporation
("Parent"), HOLIDAY RV SUPERSTORES OF SOUTH CAROLINA, INC., a South Carolina
corporation, HOLIDAY RV SUPERSTORES WEST, INC., a California corporation, COUNTY
LINE SELECT CARS, INC., a Florida corporation, ("County Line"), HALL
ENTERPRISES, INC., a Kentucky corporation, and HOLIDAY RV SUPERSTORES OF NEW
MEXICO, INC., a New Mexico corporation (together, with Parent, singularly, a
"Borrower" and collectively, "Borrowers"); HOLIDAY RV RENTAL/LEASING, INC., a
Florida corporation, LITTLE VALLEY AUTO & RV SALES, INC., a West Virginia
corporation, HOLIDAY RV ASSURANCE SERVICE, INC., F/K/A HOLIDAY RV ASSURANCE
CORPORATION, a Florida corporation, and RECREATION USA INSURANCE CORPORATION, a
Florida corporation (singularly, a "Guarantor" and collectively "Guarantors"),
BANC OF AMERICA SPECIALTY FINANCE, INC., a North Carolina corporation
("Specialty") and BANK OF AMERICA, N.A., a national banking association (the
"Bank" and together with Specialty, the "Senior Lender").
BACKGROUND
The Borrowers are indebted to the Senior Lender pursuant to that
certain Amended and Restated Loan and Security Agreement dated March 8, 2001 (as
amended, modified and supplemented, the "Senior Loan Agreement") (the "Senior
Debt"). The Guarantors have guaranteed repayment of the Senior Debt and have
granted security interests in certain assets to secure performance of their
guaranty and repayment of the Senior Debt. The amount due under the Senior Debt
as of March 14, 2002 is as follows:
Principal $14,598,068.00
Unfunded Approvals $ 595,728.00
Interest at non-default rate $ 252,887.11
(of which $146,686.29 is
currently due and payable)
Second Forbearance Attorneys' Fees & Costs 10,000.00
Third Forbearance Attorney's Fees & Costs 10,000.00
Parent proposes to issue to the Subordinated Creditor its Secured
Notes in the original principal amount of $1,600,000 (the "Subordinated Loan")
pursuant to that certain Loan and Security Agreement dated as of March 12, 2002
with the Borrowers and Guarantors (as the same may be amended, modified or
supplemented, from time to time, the "Subordinated Loan Agreement").
The Subordinated Creditor, the Borrowers, the Guarantors and the
Senior Lender wish to enter into this Agreement pursuant to which the parties
will agree that the obligations of the Borrowers and Guarantors to the
Subordinated Creditor shall be subordinate in right of payment and priority to
the obligations of the Borrowers and Guarantors to the Senior Lender,
and that the Senior Lender's security interests in and to the Collateral
described in the Senior Loan Agreement shall be senior to the interests of the
Subordinated Creditor therein.
Accordingly, the Borrowers, the Guarantors, the Subordinated
Creditor and the Senior Lender, intending to be legally bound, hereby agree as
follows:
Section 1. Definitions.
1.01. Defined Terms. The following terms shall have the
meanings specified in this Section unless the context otherwise requires.
"Loan Parties" means the Borrowers, the Guarantors and any
co-borrower, guarantor, pledgor and other obligor under any of Senior Debt.
"Senior Debt" means the principal of, and interest (including
interest which accrues after the commencement of any proceeding relating to any
Loan Party under any bankruptcy or insolvency laws, whether or not the accrual
of such interest is prohibited thereunder) upon such principal amount of
extensions of credit outstanding from time to time from the Senior Lender to the
Borrower or any Loan Party, and all other amounts (including, without
limitation, all fees, indemnities, legal fees, charges, expenses and other
monetary obligations) from time to time owing by the Borrower or any Loan Party
to the Senior Lender.
"Senior Default" means the existence of any condition or the
happening of any event, continuing uncured after the expiration of any notice,
cure or grace period provided for in any of the documents evidencing, providing
for or securing the Senior Debt, that permits the Senior Lender to accelerate
the maturity of the Senior Debt or terminate any forbearance under the Second
Amendment to Amended and Restated Loan and Security Agreement and Forbearance
Agreement and the Third Amendment to Amended and Restated Loan and Security
Agreement and Forbearance Agreement, each as hereafter amended extended or
modified.
"Separate Collateral" means the collateral described in Schedule
A, attached hereto, if and only to the extent such Separate Collateral is not
subject to the Senior Liens.
"Subordinated Debt" means all obligations of any type or nature
now or hereafter due, incurred or created from or by the Borrower, any Loan
Party or their successors and assigns, to the Subordinated Creditor, together
with interest and all other charges and expenses incidental thereto, and any
guaranty, surety or endorsement thereof.
"Subordinated Default" means the existence of any condition or
the happening of any event, continuing uncured after the expiration of any
notice, cure or grace period provided for in the documents evidencing, providing
for or securing the Subordinated Debt, that permits the Subordinated Creditor to
accelerate the maturity of the Subordinated Debt.
Section 2. Subordination Provisions of Subordinated Creditor.
2.01. Subordination. The Subordinated Creditor hereby
covenants and agrees that, except as and to the extent hereinafter provided, the
Subordinated Debt is and shall be subordinate and subject in right of payment
and priority to the prior payment in full, of all of
the Senior Debt, whether or not such Senior Debt has been voided, disallowed or
subordinated pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any
applicable state fraudulent conveyance laws, whether asserted directly or under
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code.
2.02. Subordination of Payment. Except as permitted in
Section 2.06, the Borrower shall not make, and the Subordinated Creditor shall
not retain, any payment upon the Subordinated Debt prior to the payment in full
of the Senior Debt; provided that, notwithstanding the foregoing, the Borrowers
may make, and the Subordinated Creditor may retain, payment of interest, fees or
other amounts payable in respect of the Subordinated Debt which are paid in
equity securities or warrants to acquire equity securities of the Parent.
2.03. Restriction on Enforcement Action During Default.
The Subordinated Creditor hereby agrees that, without the prior written consent
of the Senior Lender, it will take no action to enforce payment of the
Subordinated Debt upon a Subordinated Default. Without limiting the generality
of the foregoing, during the existence of a Subordinated Default, the
Subordinated Creditor - -
(1) will not xxx for, bring any action or
proceeding to recover, make demand for, take or receive from or on
behalf of any Loan Party (other than directing any Loan Party to make
payment directly to the Senior Lender for the purpose of causing the
Senior Debt to be paid), directly or indirectly, in cash or other
property, by set-off or in any other manner (including, without
limitation, from or by way of collateral or by applying funds into a
sinking or similar fund), payment of the whole or any part of the
Subordinated Debt, or any security therefor,
(2) will not accelerate all or any portion of the
Subordinated Debt or otherwise implement any remedy it may have in
respect of the Subordinated Debt (except that the Subordinated Creditor
may accelerate the Subordinated Debt if all outstanding Senior Debt
shall have been previously accelerated), and
(3) will not institute against any Loan Party any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law (except that it may file a proof of
claim in any such action instituted by another entity,
in each case, unless and until all of the Senior Debt shall have been paid in
full.
2.04. Distributions on Dissolution, Etc. 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 any Loan Party or the proceeds thereof, to creditors of any Loan Party by
reason of (1) the liquidation, dissolution or other winding up, partial or
complete, of such Loan Party or its business, (2) any receivership, insolvency
or bankruptcy proceeding, or assignment for the benefit of creditors respecting
any Loan Party, or (3) any proceeding by or against any Loan Party for any
relief under any bankruptcy or insolvency law or laws relating to the relief of
debtors, readjustment of indebtedness, arrangements, reorganizations,
compositions or extensions, then and in any such event any payment or
distribution of any kind or character, whether in cash, securities or other
property which but for this Agreement would be payable or deliverable upon or
respect to any or all of the Subordinated Debt, shall instead be paid or
delivered first directly to the Senior Lender for application to the Senior
Debt, whether then due or not due, until the Senior Debt shall have been paid in
full. The Subordinated Creditor hereby assigns all such payments and
distributions to the Senior Lender. If any such payments or distributions come
into the possession of the Subordinated Creditor, the Subordinated Creditor will
receive them as trustee for the Senior Lender and will immediately pay them to
the Senior Lender. The Senior Lender is authorized to receive any such payments
or distributions.
2.05. The Subordinated Creditor's Junior Security. (a) The
Subordinated Creditor hereby confirms that, regardless of the relative times of
attachment and/or perfection thereof (or lack thereof) or the order of filing of
financing statements, mortgages or other security documents, the security
interests and liens granted or to be granted from time to time to secure the
Senior Debt (the "Senior Liens") shall in all respect be first and senior
security interests and liens, superior to any security interests and liens
granted or to be granted to the Subordinated Creditor in assets of, or ownership
interests in, any Loan Party as security for the Subordinated Debt (the "Junior
Liens"), it being the express intention of the parties that, notwithstanding
anything in this Agreement to the contrary, all liens and security interests
granted to the Senior Lender from time to time to secure the Senior Debt shall
each be prior and superior to any liens or security interests granted to the
Subordinated Creditor. In foreclosing on the Senior Liens, so long as the Senior
Lender proceeds in a commercially reasonable manner, the Senior Lender may
proceed to foreclose on the Senior Liens in any manner which the Senior Lender,
in its sole discretion, chooses even though a higher price might have been
realized if the Senior Lender has proceeded to foreclose the Senior Lender's
security interest in another matter. The Subordinated Creditor waives any right
to marshalling of any collateral which secures the Senior Debt.
(b) The Senior Lender shall have the exclusive right to
take and maintain possession of all property constituting collateral security
for the Senior Debt for the purpose of perfecting the Senior Liens by possession
("Possessory Collateral"). The Senior Lender shall possess all such property as
bailee for the Subordinated Creditor for purposes of perfecting the Subordinated
Creditor's Junior Liens therein, but the Senior Lender shall not be deemed by
reason of such bailment to have assumed any greater responsibility to the
Subordinated Creditor than it has assumed in favor of the Loan Parties in the
applicable agreements relating to the Senior Debt.
2.06. Certain Payments Permitted if No Default. Subject to
the provisions of Section 2.02, so long as no Senior Default has occurred and is
continuing and provided that no Senior Default would occur upon the payment
thereof, the Subordinated Creditor may, from time to time, receive from the
Borrower: (1) regular quarterly payments of interest on the Subordinated Debt,
(2) principal payments of the Subordinated Debt, as and when due, (3) costs and
expenses payable under the Subordinated Loan Documents (other than costs and
expenses of collecting or enforcing the Subordinated Debt), all at such times
and in such amounts as are permitted by the Subordinated Loan Documents; and (4)
pre-payments of principal of the Subordinated Debt, provided that such
pre-payments are not in excess of, and are made solely from the proceeds of,
offerings of additional equity securities of the Parent (the
Borrowers and Guarantors recognize that such principal pre-payments shall be
included in the denominator of the Debt Service Coverage Ratio, as set forth in
Section 6.01 of the Amended Loan Agreement).
2.07. Restriction on Payments During Default; Blockage
Period. In the event and during the continuance of a Senior Default, no payment
in respect of any of the Subordinated Debt shall be made by or on behalf of the
Borrower or shall be retained by the Subordinated Creditor, during any period (a
"Blockage Period"):
(1) Beginning when written notice by the Senior
Lender describing such Senior Default shall have been received by the
Subordinated Creditor and ending upon written notice by the Senior
Lender stating that such Senior Default has been cured or waived; or
(2) In which any judicial proceeding shall be
pending in respect of such Senior Default and a notice of acceleration
of the maturity of such Senior Debt or termination of any forbearance
under the Senior Loan Agreement shall have been received by Subordinated
Creditor.
Any cash payment received by the Subordinated Creditor from any Borrower or
Guarantor during a Blockage Period shall be paid immediately to the Senior
Lender.
2.08. Restriction on Enforcement Action During Default;
Standstill Period. (a) Except as provided in subsection (b), the Subordinated
Creditor hereby agrees that, without the prior written consent of the Senior
Lender, it will take no action to enforce payment of the Subordinated Debt upon
a Subordinated Default. Without limiting the generality of the foregoing, during
the existence of a Subordinated Default, the Subordinated Creditor - -
(1) will not xxx for, bring any action or
proceeding to recover, make demand for, take or receive from or on
behalf of any Loan Party (other than directing any Loan Party to make
payment directly to the Senior Lender for the purpose of causing the
Senior Debt to be paid and, after payment of the Senior Debt, to make
payment to the Subordinated Creditor for the purpose of causing the
Subordinated Debt to be paid), directly or indirectly, in cash or other
property, by set-off or in any other manner (including, without
limitation, from or by way of collateral or by applying funds into a
sinking or similar fund), payment of the whole or any part of the
Subordinated Debt, or any security therefor,
(2) will not accelerate all or any portion of the
Subordinated Debt or otherwise implement any remedy it may have in
respect of the Subordinated Debt (except that the Subordinated Creditor
may accelerate the Subordinated Debt if all outstanding Senior Debt
shall have been previously accelerated), and
(3) will not institute against any Loan Party any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law (except that it may file a proof of
claim in any such action instituted by another entity,
in each case, unless and until all of the Senior Debt shall have been paid in
full.
(b) Notwithstanding subsection (a) the Subordinated Creditor may
proceed to take action to enforce the Subordinated Debt as provided in Section
2.09 or after payment in full of the Senior Debt.
2.09. Separate Collateral. Notwithstanding anything in
this Agreement to the contrary, the Subordinated Creditor may at any time
following and during the continuation of a Subordinated Default take any action
permitted by the Subordinated Loan Agreement to foreclose its mortgage or
security interests in the Separate Collateral; provided, however, that the
Subordinated Creditors shall notify the Senior Lender in writing prior to taking
such action and any and all proceeds of the Separate Collateral shall be paid
over to the Senior Lender for payment on the Senior Debt. The Subordinated
Creditor agrees that so long as any of the Senior Debt remains unpaid, all
proceeds from the enforcement or foreclosure of the Subordinated Creditor's
mortgages or security interests in the Separate Collateral shall be paid to the
Senior Lender for application to the Senior Debt in accordance with the Senior
Loan Agreement.
Section 3. Provisions In Furtherance of Subordination
3.01. Payments For the Benefit of Senior Lender. If any
payment, distribution of security or proceeds of any security are received by
the Subordinated Creditor upon on in respect of the Subordinated Debt in
contravention of the provisions of this Agreement, such payment or distribution
shall be received in trust for the benefit of the Senior Lender, and the
Subordinated Creditor will forthwith deliver the same to the Senior Lender in
precisely the form received (except for the endorsement or assignment of the
Subordinated Creditor where necessary), for application to the Senior Debt
whether then due or not due. Any payment subject to the provisions of this
Section 3.01 which is received during a Blockage Period and which is not
delivered to the Senior Lender by the Subordinated Creditor within 10 days of
receipt by the Subordinated Creditor shall bear interest at the default rate
provided for under the Senior Loan Agreement. Notwithstanding the foregoing,
however, to the extent that payments under the Subordinated Loan Agreement are
made to the Subordinated Creditor in the form of equity securities or warrants
or rights to acquire equity securities of the Parent, the Subordinated Creditor
may retain such payments in the form received.
3.02. Transfer or Forgiveness of Subordinated Debt. Other
than conversion of the Subordinated Loan into equity securities of the Parent as
permitted by the terms of the Subordinated Loan Agreement, the Subordinated
Creditor shall not transfer, assign, pledge or encumber the Subordinated Debt or
any part thereof or any instrument evidencing the same unless the respective
instrument of assignment specifically provides that the assignee takes the
Subordinated Debt subject to the provisions of this Agreement and (in the case
of an outright transfer or assignment) such assignee executes and delivers to
the Senior Lender an instrument in form and substance satisfactory to the Senior
Lender pursuant to which such assignee agrees to be bound by the provisions of
this Agreement. From and after the Subordinated Creditor's receipt of written
notice of the occurrence of any Senior Default, and for so long as the same
shall be continuing, the Subordinated Creditor will not exchange, forgive, waive
or cancel the Subordinated Debt or any part thereof or reduce the principal
amount of the Subordinated Debt
in whole or in part, except and to the extent that the Subordinated Debt is
converted to equity securities of the Parent.
3.03. Continuing Subordination, etc. The subordination
effected by this Agreement is a continuing subordination, and the Subordinated
Creditor hereby agrees that at any time and from time to time, without notice to
it:
(a) the time for the performance by the Borrower or
any Loan Party of, or compliance with, any of its or their
agreements contained in this Agreement or other Loan Documents
may be expanded or such performance or compliance may be waived
by the Senior Lender;
(b) the documents relating to the Senior Debt, may
be amended for the purpose of adding any provisions thereto or
increasing the amount of the Senior Debt or changing the terms of
the Senior Debt, changing in any manner the rights of the Senior
Lender or the Borrower or any Loan Party thereunder;
(c) payment of any of the Senior Debt or any
portion thereof may be extended;
(d) the maturity of any of the Senior Debt may be
accelerated or extended, the repayment terms and interest rate
may be modified, any guaranty may be released and any or all
collateral security thereof may be exchanged, sold, surrendered,
released or otherwise dealt with, and
(e) the Borrower, any Loan Party or any other
person may be released of its obligations, whether or not in
connection with a bankruptcy of such person;
all without impairing or affecting the obligations of the Subordinated Creditor
hereunder. The occurrence of any other event which could, but for this Section,
be used as a defense to the obligations of the Subordinated Creditor hereunder
shall not impair or affect such obligations.
3.04. Waiver of Notice. The Subordinated Creditor hereby
unconditionally waives notice of the incurring of the Senior Debt and the
Subordinated Creditor and the Borrower each hereby waive promptness, diligence,
notice of acceptance and any other notice with respect to any of the Senior Debt
and this Agreement and any requirement that the Senior Lender protect, secure,
perfect or insure any security interest or lien or any property subject thereto
or retain any guaranty or surety or exhaust any right or take any action against
the Borrower or any other person or entity or any collateral.
Section 4. Additional Covenants.
4.01. Further Assurances of the Subordinated Creditor, and
the Borrower.
(a) Promptly upon the written request of the Senior
Lender, the Subordinated Creditor and/or the Borrower shall (at
the expense of Borrower)
take such actions as may be reasonably requested by the Senior
Lender to protect the rights of the Senior Lender or effectuate
the subordination provided herein.
(b) the Subordinated Creditor shall notify the
Senior Lender in writing immediately upon any Subordinated
Default.
(c) The Subordinated Creditor and the Borrower will
cause each instrument evidencing Subordinated Debt to be endorsed
with the following legend:
"The indebtedness evidenced by this instrument is
subordinated to the prior payment in full of the Senior
Debt (as defined in the Intercreditor and Subordination
Agreement hereinafter referred to) pursuant to, and to the
extent provided in, the Intercreditor and Subordination
Agreement dated March ____, 2002 by the maker hereof and
the payee named herein in favor of the Senior Lender
referred to in such Intercreditor and Subordination
Agreement."
Section 5. Purchase of Senior Debt. The Senior Lender grants to
the Subordinated Creditor the right to purchase the Senior Debt at par plus
accrued interest and unpaid fees by giving written notice thereof to the Senior
Lender specifying the date of purchase (which shall not be more than five (5)
business days after the giving of such notice by the Subordinated Creditor to
the Senior Lender). At the closing of such purchase, the Senior Lender agrees to
transfer and assign to the Subordinated Creditor, WITHOUT RECOURSE and WITHOUT
ANY WARRANTIES OTHER THAN TITLE the Senior Debt, the Senior Loan Agreement and
its interest in the Collateral described in the Senior Loan Agreement against
payment by the Subordinated Creditor to the Senior Lender of the then
outstanding principal amount of the Senior Debt, plus all interest accrued
thereon, plus other fees due by the Borrower to the Senior Lender in connection
therewith, plus the Senior Lender's reasonable attorney fees and costs incurred
in connection therewith. At the time of transfer of the Senior Debt, the
Borrowers and the Guarantors shall execute and deliver to the Senior Lender such
acknowledgements, confirmations and releases as the Lender shall request
concerning the Senior Debt, including, without limitation, confirmation that the
Borrowers and Guarantors have no claims or offsets against the Senior Lender
with respect to the Senior Debt or otherwise.
Section 6. Miscellaneous.
6.01. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
6.02. Notices. All notices, requests, demands, directions
and other communications (collectively "Notices") given to or made upon any
party under the provisions of this Agreement shall be in writing (including
facsimile communications) and shall be delivered or sent by facsimile to the
respective parties at the addresses and numbers set forth
under their respective names on the signature pages of this agreement or in
accordance with any subsequent unrevoked written direction from any party to the
others. All notices shall, except where this Agreement requires receipt, be
effective (a) in the case of facsimile, when received, (b) in the case of
hand-delivered notice, when hand delivered, (c) if given by mail, four (4) days
after such communication is deposited in the mails with first class postage
prepaid, return receipt requested, and (d) if given by any other means
(including by air courier), when delivered.
6.03. Rights Relative to Other Creditors Unaffected. The
provisions of this Agreement are intended solely for the purpose of defining the
relative rights of the Subordinated Creditor and the Senior Lender. The
obligations of the Borrower to pay the Senior Debt and the Subordinated Debt are
absolute and unconditional notwithstanding the provisions hereof.
6.04. Waivers, etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by the
Senior Lender and the Subordinated Creditor. Any such amendment or waiver shall
be binding upon each other party to this Agreement.
6.05. Payment of Expenses. The Borrower agrees to pay and
hold the Senior Lender and the Subordinated Creditor harmless against liability
for the payment of all reasonable out-of-pocket expenses arising in connection
with the preparation, execution, delivery or administration (including, without
limitation, any modification of, or any consent or waiver under, this Agreement,
and any enforcement of, or the preservation of any rights under, this Agreement,
including, without limitation, the fees and expenses of all counsel to the
Senior Lender and the Subordinated Creditor) of this Agreement and the
transactions contemplated under this Agreement. As between the Senior Lender and
the Subordinated Creditor, the prevailing party in any litigation between the
Senior Lender and the Subordinated Creditor shall be entitled to recover from
the other its reasonable attorneys' fees, fees of legal assistants and costs
(including expenses of appraisers and accountants) incurred in connection
herewith, including fees and costs incurred on appeal; provided that, in any
event, the Borrower shall continue to be obligated to hold the paying party
harmless therefrom as hereinbefore provided in this Section 6.05. This provision
shall survive the termination of this Agreement.
6.06. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of the Subordinated Creditor, the Borrower and the Senior Lender. Any holder of
any Senior Debt may rely on the provisions of this Agreement and may enforce the
provisions hereof as if they had been a party to this Agreement without any act
or notice of acceptance by the Borrower or the Subordinated Creditor.
6.07. Counterparts. This Agreement may be executed in one
or more counterparts and all of such counterparts taken together shall
constitute one and the same instrument.
6.08. Exoneration. The Senior Lender shall have no
liability to the Subordinated Creditor for any actions or failures to act in
connection with the Senior Debt,
except with respect to claims based upon the Senior Lender's bad faith, gross
negligence, willful misconduct or fraud or breach of this Agreement.
6.09. Jurisdiction; Waiver of Jury Trial. For the purpose
of any action that may be brought in connection with this Agreement, Borrower
and the Subordinated Creditor each hereby consents to the jurisdiction and venue
of the courts of the State of Florida, Hillsborough County, or of any federal
court located in such state and such county. Borrower and the Subordinated
Creditor each hereby waives the right to contest the jurisdiction and venue of
the courts located in the State of Florida on the ground of inconvenience, lack
of venue or otherwise and, further, waives any right to bring any action or
proceeding against the Senior Lender in any court outside the State of Florida.
The provisions of this Section shall not limit or otherwise affect the right of
the Senior Lender to institute and conduct an action in any other appropriate
manner, jurisdiction or court.
NEITHER THE SENIOR LENDER NOR THE BORROWER NOR THE SUBORDINATED
CREDITOR NOR ANY OTHER PERSON LIABLE FOR THE INDEBTEDNESS TO THE SENIOR LENDER,
LOAN PARTY, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF ANY
SUCH PERSON SHALL SEEK A JURY TRIAL IN ANY PROCEEDING BASED UPON OR ARISING OUT
OF THIS AGREEMENT, ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH, ANY
COLLATERAL FOR THE PAYMENT HEREOF OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR
AMONG SUCH PERSONS, OR ANY OF THEM. NO SUCH PERSON WILL SEEK TO CONSOLIDATE ANY
SUCH ACTION INTO ONE IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO WAIVES ANY RIGHTS IT MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION, ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. EACH PARTY HERETO (i) CERTIFIES THAT NEITHER ANY
REPRESENTATIVE, AGENT OR ATTORNEY OF THE SENIOR LENDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE SENIOR LENDER WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER DOCUMENT EXECUTED
IN CONNECTION HEREWITH, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS HEREIN. THE PROVISIONS OF THIS SECTION HAVE BEEN
FULLY DISCLOSED BY AND TO THE PARTIES HERETO AND THE PROVISIONS HEREOF SHALL BE
SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO
ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED
IN ALL INSTANCES.
IN WITNESS WHEREOF, the parties hereto have caused this
Subordination Agreement to be duly executed as of the day and year first above
written.
PARENT:
HOLIDAY RV SUPERSTORES, INC., a Delaware
corporation (the "Borrower")
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: 000 Xxxx Xxxxxxx Xxxx.
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attn: President
Fax No.: (000) 000-0000
SUBORDINATED CREDITOR:
XXXX FINANCE CO, LLC, a Delaware limited
liability company
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Address: 0000 Xxxxx xxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attn: President
Fax No.: (000) 000-0000
SENIOR LENDER:
BANC OF AMERICA SPECIALTY FINANCE, INC.,
a North Carolina corporation
By:
-------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Mail Code FL1-010-13-11
Xxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Fax No.: (000) 000-0000
BANK OF AMERICA, N.A., a national
banking association
By:
-------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Mail Code FL1-010-13-11
Xxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Fax No.: (000) 000-0000
Copy to: Xxxxx & Lardner
00 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Fax No.: 000-000-0000
BORROWERS:
(Address for notice is same as Parent)
HOLIDAY RV SUPERSTORES OF SOUTH
CAROLINA, INC.
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
HOLIDAY RV SUPERSTORES WEST, INC.
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
HOLIDAY RV SUPERSTORES OF NEW MEXICO,
INC.
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
HALL ENTERPRISES, INC.
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
GUARANTORS:
(Address for notice is same as Parent)
HOLIDAY RV RENTAL/LEASING, INC.
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
LITTLE VALLEY AUTO & RV SALES, INC.
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
HALL ENTERPRISES, INC.
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
HOLIDAY RV ASSURANCE SERVICE, INC.,
F/K/A HOLIDAY RV ASSURANCE CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
RECREATION USA INSURANCE CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
