Exhibit 10.60
SUBORDINATION AGREEMENT -
XXXXXX BOATS & MOTORS, INC.
INDEBTEDNESS TO BRUNSWICK CORPORATION
WHEREAS, XXXXXX BOATS & MOTORS, INC. ("Borrower") is now indebted to
the undersigned in the amount of $3,000,000 and may from time to time hereafter
become indebted to the undersigned in further amounts; and
WHEREAS, Borrower has requested, and may from time to time hereafter
request, Deutsche Financial Services Corporation (hereinafter, together with its
successors and assigns, called "Lender") to make or agree to make loans,
advances or other financial accommodations to Borrower.
NOW, THEREFORE, to induce Lender, from time to time, at its option, to
make or agree to make loans, advances or other financial accommodations
(including, without limitation, renewals, amendments, modifications or
extensions of any loans or advances heretofore or hereafter made) to Borrower,
and for other valuable consideration, receipt whereof is hereby acknowledged,
the undersigned agrees as follows:
1. All obligations of Borrower, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent or now or
hereafter existing, or due or to become due, are hereinafter called
"Liabilities". All Liabilities to Lender are hereinafter called "Senior
Liabilities"; and all Liabilities to the undersigned arising pursuant to the
Subordinated Note Purchase Agreement (the "Purchase Agreement") dated as of
December 14, 2001 between the Borrower and the undersigned and the note issued
pursuant thereto (the "Convertible Note") are hereinafter called "Junior
Liabilities" (which term shall not include any Liabilities to the undersigned
arising from any other arrangement or transaction, including without limitation,
liabilities relating to purchase of products from the undersigned and its
affiliates); it being expressly understood and agreed that the term "Senior
Liabilities", as used herein, shall include, without limitation, any and all
interest accruing on any of the Senior Liabilities after the commencement of any
proceedings referred to in paragraph 6 hereof, notwithstanding any provision or
rule of law which might restrict the rights of Lender, as against Borrower or
anyone else, to collect such interest. Copies of all instruments, agreements and
documents representing the Junior Liabilities currently in existence are
attached hereto as Schedule A (the "Subordinated Debt Documents"). The
undersigned agrees that the Purchase Agreement and the Convertible Note shall
not be amended or restated without the prior written consent of Lender.
2. The undersigned acknowledges and agrees that (a) the maximum
principal amount of the Senior Liabilities as of the date of this Agreement is
$45,000,000.00 (the "Senior Liability Principal Amount"); and (b) the Senior
Liabilities Principal Amount may increase from time to time on a temporary
and/or seasonal basis, but shall not increase on a permanent basis without the
prior written consent of the undersigned.
3. The undersigned shall (a) promptly notify Lender of the creation of
any Junior Liabilities and of the issuance of any promissory note or other
instrument to evidence any such Junior Liabilities other than the Convertible
Note issued on the date hereof; and (b) upon Lender's request, cause any Junior
Liabilities which are not evidenced by a promissory note or other instrument of
Borrower to be so evidenced.
4. The undersigned hereby consents to the creation and existence of the
Senior Liabilities and to the granting by Borrower to Lender of security
interests and liens in and to any and all property (whether real or personal) of
Borrower.
5. Except as expressly allowed pursuant to this Agreement, or as Lender
may hereafter otherwise expressly consent to in writing, the payment of all
Junior Liabilities shall be postponed and subordinated to the indefeasible
payment in full of all Senior Liabilities, and no payments or other
distributions whatsoever in respect of any Junior Liabilities shall be made, nor
shall any property or assets of Borrower be applied to the purchase or other
acquisition or retirement of any Junior Liabilities; provided, however, that,
(a) until such time as Borrower shall have defaulted in the payment when due,
whether by acceleration or otherwise, of any amount payable in respect to the
Senior Liabilities and Lender has given Borrower written notice (which may be
given electronically, via facsimile or written document) of such payment default
or (b) until such time as Borrower shall have defaulted in the payment when due,
whether by acceleration or otherwise, of any amount payable in respect to any
lender (other than Lender) to which the undersigned has subordinated the Junior
Liabilities under a separate Subordination Agreement - Xxxxxx Boats & Motors,
Inc. Indebtedness to Brunswick Corporation executed by the undersigned as of the
date hereof and such other lender has given Borrower written notice (which may
be given electronically, via facsimile or written document) of such payment
default or (c) subject to the provisions of paragraph 6 of this Agreement, until
such time as any lender (other than Lender) to which the undersigned has
subordinated the Junior Liabilities under a separate Subordination Agreement -
Xxxxxx Boats & Motors, Inc. Indebtedness to Brunswick Corporation executed by
the undersigned as of the date hereof has given Borrower written notice (which
may be given electronically, via facsimile or written document) that any default
or event of default relating to any violation or default with respect to or of
any financial covenant or ratio has occurred, or will occur with the passing of
time, the giving of notice, or both; or (d) subject to the provisions of
paragraph 6 of this Agreement, until such time as any lender (other than Lender)
to which the undersigned has subordinated the Junior Liabilities under a
separate Subordination Agreement - Xxxxxx Boats & Motors, Inc. Indebtedness to
Brunswick Corporation executed by the undersigned as of the date hereof has
given Borrower written notice (which may be given electronically, via facsimile
or written document) that any other default or event of default not described in
clauses (a), (b), (c), (e) or (f) of this paragraph 5 has occurred, or will
occur with the passing of time, the giving of notice, or both; or (e) until such
time as Borrower or any other borrower under that certain Loan and Security
Agreement dated January 31, 2000, as amended from time to time, by and among the
entities set forth on acknowledgement attached hereto and Lender (said loan and
security agreement, as amended and/or restated from time to time shall be
referred to as the "Loan Agreement") or any guarantor of any or all of the
Senior Liabilities shall become insolvent or generally fail to pay, or admit in
writing its inability to pay, such person's or entity's debts as they become
due, or a proceeding under any bankruptcy, reorganization, arrangement of debt,
insolvency, readjustment of debt or receivership law or statute is filed by or
against Borrower, any other borrower under the Loan Agreement or any guarantor
of any or all of the Senior Liabilities or any Borrower, any other borrower
under the Loan Agreement or any guarantor of any or all of the Senior
Liabilities makes an assignment for the benefit of creditors; or (f) subject to
the provisions of paragraph 6 of this Agreement, until such time as Lender has
given Borrower written notice (which may be given electronically, via facsimile
or written document) that any "Default" (as defined in the Loan Agreement)
relating to any violation or default with respect to or of any financial
covenant or ratio has occurred, or will occur with the passing of time, the
giving of notice, or both; or (g) subject to the provisions of paragraph 6 of
this Agreement, until such time as Lender has given Borrower written notice
(which may be given electronically, via facsimile or written document) that any
other "Default" (as defined in the Loan Agreement) not described in clauses (a),
(b), (c), (e) or (f) of this paragraph 5 has occurred, or will occur with the
passing of time, the giving of notice, or both (any such events described in
clauses (a) through (g) in this paragraph 5 which has not been cured or waived
shall be referred to as a "Continuing Default"), Borrower may continue to make
payments of interest during the term of the Junior Liabilities in existence as
of the date of this Agreement and principal at maturity pursuant to the terms of
the Junior Liabilities in existence as of the date of this Agreement. In
addition and notwithstanding any other provision of this Agreement, if
(i) both any event described under clauses (d) and/or (g)
of this paragraph 5 has occurred and Lender has not
accelerated any or all of the Senior Liabilities,
after the passage of 30 days following the latest
date of the written notice referred to such clauses,
Borrower may resume making payments of interest
during the term of the Junior Liabilities in
existence at the date of this Agreement or
(ii) both any event described under clauses (c) and/or (f)
of this paragraph 5 has occurred and Lender has not
accelerated any or all of the Senior Liabilities,
after the passage of 90 days following the latest
date of the written notice referred to such clauses,
Borrower may resume making payments of interest
during the term of the Junior Liabilities in
existence at the date of this Agreement or
(iii) any Continuing Default has occurred, the undersigned
may, in its sole discretion, set off any rebates due
by the undersigned to Borrower (but excluding
specifically any amounts due and owing by the
undersigned to Borrower and/or Lender relating to
returns of any goods to the undersigned) against any
Junior Liabilities in existence at the date of this
Agreement that have accrued, are due and owing and
have not been paid; or
(iv) any event described in clauses (a), (b), (c), (d),
(f) and/or (g) of this paragraph 5 has been
subsequently cured by Borrower and/or any other
person or entity or waived by Lender and no other
event under clauses (a) through (g) have occurred
that in the case of clauses (a), (b), (c), (d), (f)
and/or (g) have not been cured by Borrower and/or any
other person or entity or waived by Lender, Borrower
may resume making payments of interest during the
term of the Junior Liabilities in existence at the
date of this Agreement and principal at maturity
pursuant to the terms of the Junior Liabilities in
existence as of the date of this Agreement.
Until the Senior Liabilities have been indefeasibly paid in full, the
undersigned agrees that any security interests and liens the undersigned now has
or hereafter may have in any or all of the property (whether real or personal)
of Borrower is and shall be subordinate to Lender's security interests and liens
in such property but only to the extent such security interests or liens arise
pursuant to the Purchase Agreement or are in any way related to the Junior
Liabilities (including, but not limited to, any judgment liens and liens arising
by operation of law). Without limitation of the foregoing, the undersigned
acknowledges and agrees that the subordination of lien set forth in this
paragraph 5 applies notwithstanding any right of the undersigned to effect any
collection or enforcement of any of the Junior Liabilities as allowed under
paragraph 10 of this Agreement.
6. In the event of any dissolution, winding up, liquidation,
readjustment, reorganization or other similar proceedings relating to Borrower
or to its property (whether voluntary or involuntary, partial or complete, and
whether in bankruptcy, insolvency or receivership, or upon an assignment for the
benefit of creditors, or any other marshaling of Borrower's assets and
liabilities, or any sale of all or substantially all of Borrower's assets, or
otherwise), the Senior Liabilities shall first be paid in full before the
undersigned shall be entitled to receive and to retain any payment or
distribution in respect of the Junior Liabilities, and, in order to implement
the foregoing, (a) all payments and distributions of any kind or character in
respect of the Junior Liabilities to which the undersigned would be entitled if
the Junior Liabilities were not subordinated, pledged or assigned pursuant to
this Agreement shall be made directly to Lender; (b) the undersigned shall
promptly file a claim or claims, in the form required in such proceedings, for
the full outstanding amount of the Junior Liabilities, and shall cause said
claim or claims to be approved and all payments and other distributions in
respect thereof to be made directly to Lender; and (c) the undersigned hereby
irrevocably agrees that Lender may, at its sole discretion, in the name of the
undersigned or otherwise, demand, xxx for, collect, receive and give receipt for
any and all such payments or distributions, and file, prove and vote or consent
in any such proceedings with respect to, any and all claims of that undersigned
relating to the Junior Liabilities.
7. In the event that the undersigned receives any payment or other
distribution of any kind or character from Borrower or from any other source
whatsoever in respect of any of the Junior Liabilities, other than as expressly
permitted by the terms of this Agreement, such payment or other distribution
shall be received in trust for Lender and promptly turned over by the
undersigned to Lender. It is expressly understood and agreed that any interest
or principal payment with respect to the Junior Liabilities which was properly
made in accordance with the terms of this Agreement at the time of payment shall
not be held in trust for Lender and shall not be turned over by the undersigned
to Lender, notwithstanding any subsequent event including, without limitation,
any subsequent event described in clauses (a) through (e) of paragraph 5 of this
Agreement. Following the payment of all of the Senior Liabilities and
termination of all of Lender's obligations to provide any financing to Borrower,
including, but not limited to, under the Loan Agreement, the undersigned shall
be subrogated to Lender with respect to the amounts paid to Lender pursuant to
the immediately preceding sentence. The undersigned shall xxxx the undersigned's
books and records, and cause Borrower to xxxx its books and records, so as to
clearly indicate that the Junior Liabilities are subordinated in accordance with
the terms of this Agreement, and shall cause to be clearly inserted in any
promissory note or other instrument which at any time evidences any of the
Junior Liabilities a statement to the effect that the payment thereof is
subordinated in accordance with the terms of this Agreement. The undersigned
shall execute such further documents or instruments and take such further action
as Lender may reasonably from time to time request to carry out the intent of
this Agreement.
8. All payments and distributions received by Lender in respect of the
Junior Liabilities, to the extent received in or converted into cash, may be
applied by Lender first to the payment of any and all expenses (including
attorneys' fees and costs) paid or incurred by Lender in enforcing this
Agreement or in endeavoring to collect or realize upon any of the Junior
Liabilities or any security therefor, and any balance thereof shall, solely as
between the undersigned and Lender, be applied by Lender, in such order of
application as Lender may from time to time select, toward the payment of the
Senior Liabilities remaining unpaid; provided, however, as between Borrower and
its creditors, no such payments or distributions of any kind or character shall
be deemed to be payments or distributions in respect of the Senior Liabilities;
and, notwithstanding any such payments or distributions received by Lender in
respect of the Junior Liabilities and so applied by Lender toward the payment of
the Senior Liabilities, the undersigned shall be subrogated to the then existing
rights of Lender, if any, in respect of the Senior Liabilities only at such time
as this Agreement shall have been discontinued and Lender shall have received
payment of the full amount of the Senior Liabilities, as provided in paragraph
11 hereof.
9. The undersigned hereby waives (a) notice of acceptance by Lender of
this Agreement; (b) notice of the existence or creation or non-payment of all or
any of the Senior Liabilities; and (c) all diligence in collection or protection
of or realization upon the Senior Liabilities or any thereof or any security
therefor.
10. Without the Lender's consent, the undersigned may transfer or
assign any or all Junior Liabilities to any party who agrees to simultaneously
enter into a subordination agreement with the Lender substantially in the form
of this Agreement, with such changes as are necessary to reflect such transfer
or assignment. The undersigned shall not, without Lender's prior written
consent, (a) cancel, waive, forgive, or attempt to enforce or collect, or
subordinate to any Liabilities, other than the subordination pursuant to the
Senior Liabilities under this Agreement and the "Senior Liabilities" under a
separate Subordination Agreement - Xxxxxx Boats & Motors, Inc. Indebtedness to
Brunswick Corporation executed by the undersigned as of the date hereof, any
Junior Liabilities or any rights in respect thereof; provided, however, no
consent of Lender is needed to enforce or collect with respect to a default
arising from a breach of Section 8.10 of the Purchase Agreement or an event
described in Section 10.1(i) of the Purchase Agreement; (b) take any collateral
security for any Junior Liabilities; (c) convert any Junior Liabilities into
stock of Borrower except as set forth in the Convertible Note; (d) commence, or
join with any other creditor in commencing, any bankruptcy, reorganization or
insolvency proceedings with respect to Borrower; (e) declare a non-monetary
default (howsoever defined, but excluding a default arising from a breach of
Section 8.10 of the Purchase Agreement or an event described in Section 10.1(i)
of the Purchase Agreement) under any agreement, instrument or document
representing any of the Junior Liabilities, including but not limited to the
Subordinated Debt Documents; or (f) amend, modify, extend, renew, supplement,
replace, substitute and/or restate the Subordinated Debt Documents; provided,
however, that upon any default by Borrower on the payment of any of the interest
on the Junior Liabilities in existence on the date of this Agreement, or upon
the maturation of the principal amount of the Junior Liabilities in existence on
the date of this Agreement, the undersigned may pursue enforcement and
collection of the payment of such Junior Liabilities in existence on the date of
this Agreement either (I) at any time (and without giving effect to any
restrictions contained in the following clause (II) with respect to a breach of
Section 8.10 of the Purchase Agreement or an event described in Section 10.1(i)
of the Purchase Agreement; or (II) provided no Continuing of Default has
occurred or subsequently occurs prior to the point in time that the undersigned
collects any portion of such Junior Liabilities (unless with respect to each
specific Continuing Default referenced in paragraphs 5(i) and (ii) of this
Agreement, (A) the 30 day period in paragraph 5(i) of this Agreement and (B) the
90 day period in paragraph 5(ii) of this Agreement have expired and Lender has
not accelerated any or all of the Senior Liabilities), and further provided that
the repayment of such Junior Liabilities would not cause an Default to occur,
whether immediately or with the passing of time, the giving of notice, or both,
pursuant to the provisions of the Loan Agreement. If a Continuing Default should
occur prior to the point in time when the Junior Liabilities on the date of this
Agreement have been paid in full (unless with respect to each specific
Continuing Default referenced in paragraphs 5(i) and (ii) of this Agreement, (A)
the 30 day period in paragraph 5(i) of this Agreement and (B) the 90 day period
in paragraph 5(ii) of this Agreement have expired and Lender has not accelerated
any or all of the Senior Liabilities), or if the repayment of such Junior
Liabilities would cause an Default to occur, whether immediately or with the
passing of time, the giving of notice, or both, pursuant to the provisions of
the Loan Agreement, then the undersigned may not further enforce or collect on
either principal or interest payments with respect to the Junior Liabilities
until such time as Lender has been paid in full for all Senior Liabilities or
such Continuing Default is cured by Borrower or waived in writing by Lender, or
if such collection or enforcement is prohibited because repayment of the Junior
Liabilities would cause a default under the terms of the Loan Agreement then the
undersigned may not collect that portion of the Junior Liabilities that would
cause an Default to occur, whether immediately or with the passing of time, the
giving of notice, or both, pursuant to the provisions of the Loan Agreement. To
the extent that the undersigned takes any permitted action pursuant to this
paragraph 10, the undersigned shall give Lender written notice of such action
contemporaneously with or prior to the taking of each such action.
11. The undersigned represents and warrants to Lender that (a) the
undersigned has all requisite power and authority to execute and deliver this
Agreement to Lender; and (b) the undersigned is the sole owner of, and has not
assigned, transferred or set over in whole or in part, any of the undersigned's
right, title or interest and liens in any of Borrower's property (whether real
or personal) securing the Junior Liabilities.
12. This Agreement shall in all respects be a continuing agreement and
shall remain in full force and effect (notwithstanding, without limitation, that
at any time or from time to time the Senior Liabilities shall have been paid
down to zero in connection with any line of credit, floor plan or revolving
indebtedness of any kind, unless Lender shall have cancelled the Senior
Liabilities) until the first to occur of (i) the final and permanent payment in
full of all Senior Liabilities, (ii) the payment in full of all Junior
Liabilities, or (iii) the conversion of the Convertible Note, in each case
including any and all, extensions, amendments, modifications or renewals of any
of such Senior Liabilities or Junior Liabilities); any and all interest accruing
on any of the foregoing, and any and all expenses paid or incurred by Lender in
endeavoring to collect or realize upon any of the foregoing or any security
therefor), at which time this Agreement shall terminate.
13. Lender may, from time to time, whether before or after any
discontinuance of this Agreement, at its sole discretion and without notice to
the undersigned, take any or all of the following actions: (a) retain or obtain
a security interest in any property to secure any of the Senior Liabilities; (b)
retain or obtain the primary or secondary obligation of any other obligor or
obligors with respect to any of the Senior Liabilities; (c) extend or renew for
one or more periods (whether or not longer than the original period), alter or
exchange any of the Senior Liabilities, or release or compromise any obligation
of any nature of any obligor with respect to any of the Senior Liabilities; and
(d) release its security interest in, or surrender, release or permit any
substitution or exchange for, all or any part of any property securing any of
the Senior Liabilities, or extend or renew for one or more periods (whether or
not longer than the original period) or release, compromise, alter or exchange
any obligations of any nature of any obligor with respect to any such property.
14. Lender may, from time to time, whether before or after any
discontinuance of this Agreement, assign or transfer any or all of the Senior
Liabilities or any interest therein; and, notwithstanding any such assignment or
transfer or any subsequent assignment or transfer thereof, such Senior
Liabilities shall be and remain Senior Liabilities for the purposes of this
Agreement, and every immediate and successive assignee or transferee of any of
the Senior Liabilities or of any interest therein shall, to the extent of the
interest of such assignee or transferee in the Senior Liabilities, be entitled
to the benefits of this Agreement to the same extent as if such assignee or
transferee were Lender; provided, however, that, unless Lender shall otherwise
consent in writing, Lender shall have an unimpaired right, prior and superior to
that of any such assignee or transferee, to enforce this Agreement, for the
benefit of Lender, as to those of the Senior Liabilities which Lender has not
assigned or transferred; and provided further than any assignee or transferee
must agree to the terms of this Agreement and the undersigned must be given
notice of such transfer or assignment.
15. Lender shall not be prejudiced in its rights under this Agreement
by any act or failure to act of Borrower or the undersigned, or any
noncompliance of Borrower or the undersigned with any agreement or obligation,
regardless of any knowledge thereof which Lender may have or with which Lender
may be charged; and no action of Lender permitted hereunder shall in any way
affect or impair the rights of Lender and the obligations of the undersigned
under this Agreement.
16. No delay on the part of Lender in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
Lender of any right or remedy shall preclude other or further exercise thereof
or the exercise of any other right or remedy; nor shall any modification or
waiver of any of the provisions of this Agreement be binding upon Lender except
as expressly set forth in writing duly signed and delivered on behalf of Lender.
For the purposes of this Agreement, Senior Liabilities shall include all
obligations of Borrower to Lender, notwithstanding any right or power of
Borrower or anyone else to assert any claim or defense as to the invalidity or
unenforceability of any such obligation, and no such claim or defense shall
affect or impair the agreements and obligations of the undersigned hereunder.
17. This Agreement shall be binding upon the undersigned and upon the
undersigned's respective heirs, legal representatives, successors and assigns;
and, to the extent that Borrower is a corporation, all references herein to
Borrower shall be deemed to include any successor or successors, whether
immediate or remote, to such corporation. If more than one party shall execute
this Agreement, the term "undersigned" as used herein shall mean all parties
executing this Agreement and each of them, and all such parties shall be jointly
and severally obligated hereunder.
18. This Agreement shall be governed by and construed in accordance
with the laws of Illinois applicable to contracts wholly executed and performed
within the boundaries of that state. 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 such 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. All notices, demands,
instructions and other communications required or permitted to be given to or
made upon any person or entity relating to this Agreement 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) days after such
notice is sent by overnight courier to the intended recipient thereof in
accordance with the provisions of this paragraph. Unless otherwise specified in
a notice sent or delivered in accordance with the foregoing provisions of this
paragraph, notices, demands, instructions and other communications in writing
shall be given to or made upon the respective signatories hereto at their
respective addresses indicated for such signatories set forth below the
signature lines of this Agreement.
19. THE UNDERSIGNED ACKNOWLEDGES THAT THE LOAN AGREEMENT IS BEING
SIGNED BY THE LENDER IN PARTIAL CONSIDERATION OF LENDER'S RIGHT TO ENFORCE IN
THE JURISDICTION STATED BELOW THE TERMS AND PROVISION OF THIS AGREEMENT, THE
LOAN AGREEMENT AND ALL OF THE AGREEMENTS, DOCUMENTS AND INSTRUMENTS CONTEMPLATED
OR REQUIRED BY THE LOAN AGREEMENT. THE UNDERSIGNED CONSENTS TO JURISDICTION IN
THE STATE OF MICHIGAN AND VENUE IN ANY STATE OR FEDERAL COURT IN OAKLAND COUNTY,
MICHIGAN FOR SUCH PURPOSES AND WAIVES ANY AND ALL RIGHTS TO CONTEST SAID
JURISDICTION AND VENUE AND ANY OBJECTION THAT SAID COUNTY IS NOT CONVENIENT. THE
UNDERSIGNED WAIVES ANY RIGHTS TO COMMENCE ANY ACTION AGAINST LENDER IN ANY
JURISDICTION EXCEPT THE AFORESAID COUNTY AND STATE. LENDER AND THE UNDERSIGNED
HEREBY EACH EXPRESSLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER (A) THE UNDERSIGNED AGAINST LENDER
OR (B) LENDER AGAINST THE UNDERSIGNED WITH RESPECT TO ANY MATTER WHATSOEVER
RELATING TO, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
20. To the extent that any right granted to Lender is also granted to
the Lender as defined in the other Subordination Agreement - Xxxxxx Boats &
Motors, Inc. Indebtedness to Brunswick Corporation executed by the undersigned
as of the date hereof, such right shall be deemed to be a joint right of both
Lender and the lender under such other subordination agreement.
21. This Subordination Agreement may only be amended by a written
instrument signed by the Borrower, the undersigned and the Lender.
22. The Lender shall not impose any restrictions on the payment of the
Junior Liabilities other than as set forth in this Subordination Agreement.
IN WITNESS WHEREOF, this Agreement has been made and delivered as of
December 14, 2001.
BRUNSWICK CORPORATION
By:
---------------------------------
Its:
--------------------------------
Address:----------------------------
Phone: (____)_______________________
Fax: (____)_________________________
ACKNOWLEDGMENT
Borrower hereby acknowledges receipt of a copy of the foregoing
Agreement, waives notice of acceptance thereof by Lender, and agrees to be bound
by the terms and provisions thereof, to make no payments or distributions
contrary to the terms and provisions thereof, and to do every other act and
thing necessary or appropriate to carry out such terms and provisions. In the
event of any violation of any of the terms and provisions of the foregoing
Agreement, then, at Lender's election, any and all obligations of Borrower to
Lender shall immediately become due and payable and any and all agreements of
Lender to make loans, advances or other financial accommodations to Borrower
shall immediately terminate, notwithstanding any provisions thereof to the
contrary. Borrower acknowledges and agrees that any notice or cure periods
described in the foregoing Agreement are for the sole benefit of Brunswick
Corporation and not for the benefit of Borrower, any other borrower under the
Loan Agreement or any guarantor of any or all of the Senior Liabilities.
Dated: December 14, 2001
XXXXXX BOATS & MOTORS, INC.
By:
--------------------------------
Title:-----------------------------
Address:---------------------------
Phone: (____)_________________
Fax: (____)_________________
ACCEPTED in Oakland County, Michigan
as of the date set forth above.
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:___________________________
Title:_________________________
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
