Exhibit 10.21
SUBORDINATION AGREEMENT
WHEREAS, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
having its principal place of business at ___________ ("BOA") holds a lien on
and security interest in, among other things, all whether now owned or
hereafter acquired equipment of TOMAHAWK II, INC., having its principal place
of business at 8315 Century Park, Court #200, San Diego, California 92123
("Borrower"), which lien and security interest secures obligations of
Borrower to BOA arising under certain loan and security documents with BOA;
WHEREAS, Borrower has requested that FINOVA Capital Corporation, having a
place of business at 115 West Century Road, Paramus, New Jersey 07652 ("FINOVA")
provide financing (the "FINOVA Lease Transaction") to Borrower pursuant to a
certain Lease Agreement;
WHEREAS, in order to secure the due payment and performance of all now
existing or hereafter arising indebtedness, liabilities and obligations of
Borrower to FINOVA (the "FINOVA Obligations"), Borrower will enter into that
certain Lease Agreement with FINOVA and FINOVA will provide the financing for
the equipment described on the Schedule A annexed hereto (the "FINOVA
Equipment"); and
WHEREAS, FINOVA is unwilling to enter into the FINOVA Lease Transaction
with Borrower unless, among other things, BOA enters into this Agreement with
FINOVA;
NOW THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, it is hereby agreed that:
1. BOA hereby consents to the FINOVA Lease Transaction and to the
exercise of FINOVA's rights under the agreements, instruments and documents
executed in connection therewith.
2. Notwithstanding the provisions of applicable law with respect to the
priority of security interests and irrespective of the order of filing or
perfection, BOA hereby subordinates, to the fullest extent possible, all of the
liens, security interests and other interests held by BOA in and to the FINOVA
Equipment, to the interest of FINOVA (the "FINOVA Interest") in and to the
FINOVA Equipment, which FINOVA Interest shall be senior and superior to those
held by BOA in and to the FINOVA Equipment.
3. Any proceeds of the FINOVA Equipment which may inadvertently be paid
to or received by BOA shall be held in trust by BOA for the benefit of FINOVA
and shall be promptly paid and delivered by BOA to FINOVA in the same form
received.
4. All notices and correspondence between the parties herein shall be
addressed to the parties at their respective addresses set forth above, if to
BOA, to the attention of
_________________________, and if to FINOVA, to the attention of Pamela
Marchant, Vice President.
5. The respective rights of the parties hereunder shall in no way be
altered or affected by virtue of any action being taken by or against Borrower
under any state or federal bankruptcy or insolvency law.
6. This Agreement is intended solely to establish the respective rights
as between FINOVA and BOA; shall not in any way affect or impair the validity or
enforceability of their respective security interests as against any other
person or entity; and no such other person or entity (whether a trustee in
bankruptcy or otherwise) shall have any rights or benefits hereunder.
7. BOA acknowledges that Borrower is not in default or breach of any
provision contained in any agreement and the consummation and execution of the
FINOVA Lease Transaction will not be a breach or default under any such
agreement.
8. THIS AGREEMENT SHALL BE BINDING UPON THE SUCCESSORS AND ASSIGNS OF THE
PARTIES HERETO AND SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF ARIZONA.
IN WITNESS WHEREOF, this Agreement has been executed on this _____ day
of ___________, 1999.
FINOVA CAPITAL CORPORATION
By:
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Title:
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
------------------------------------------
Title:
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AGREED TO:
TOMAHAWK II, INC.
By: /s/ Michael H. Lorber
------------------------
Title: VP - Finance & CFO
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-2-
Schedule "A" to Master Lease Schedule No. C0856002 to
Equipment Lease No. C0856001 between Tomahawk II, Inc.
as Lessee and FINOVA Capital Corporation as Lessor.
QTY DESCRIPTION
1 DEA Gamma 1204 CNC CMM
Measuring Range: 80" x40" x27"
Accuracy: .0008 (Volumetric - Over entire envelope)
Repeatability: +/- .0002"
Virtual-Dimis Measuring Software:
Direct Joystick Measurement
Self Teach Part Programming
CNC Part Program Execution
Graphical On & Off-Line Part Program Creation
3D Direct CAD Link
Solid Model Graphical Representation
Multi-Tasking Capabilities
Comprehensive Multi-Media Help
Software Algorithms Approved to EUR 13417 Test Report
Networking Capabilities
New Computer Hardware Specifications:
IMS 450 Mhz Pentium II w/MMX Processor
128 MB SDRAM
4.0 GB Hard Drive
32 X Max Variable CD-ROM Drive
3.5" Diskette Drive
4 MB PCI Graphics Accelerator
16-Bit Stereo Sound System
Universal Serial Bus Connections
56K External Modem
Network Card
Microsoft Windows '98 Pre-Installed
17" Color Monitor
HP 722C Ink Jet Printer
Measuring Software Upgrade System:
M9 Based Electronic System, 32-Bit Transputer-Based Continuous
Motion Serve Control Card Assembled into the PC
Portable Joystick Teach Box Unit w/ Interface
System Desk for Computer & Peripherals
On-Line System Diagnostic Software
Probing System:
Renishaw Motorized PH-9 Probe Head
Renishaw TP-2 Touch Probe
Renishaw Probe Kit
Surface Module Included
Miscellaneous Accessories:
Wilkerson Air Dryer
Norgren H20 & Particle Seperators
Reference Sphere
Clamping Kit
Training Applications Support & Software Maintenance:
Virtual-Dimis Training Course, 4 Days for 2 Persons in Brea, CA
Six Months Software Up-Dates at No Charge
Installation & Standard Calibration Included