SUBORDINATION AGREEMENT
EXHIBIT
10.10
This
Subordination Agreement (this “Agreement”) is entered into as of the 18th day of
May, 2005, by Eagle Funding, LLC (collectively referred to herein as the
“Subordinated Lender”), and Xxx Xxxxxxxx Xxxxxx, Attorney-in-Fact for the Trust
Under the Will of Xxxx Xxxxxxxxxxx, (the “Senior Lender”). Unless otherwise
defined herein, capitalized terms used herein shall have the meaning provided
such terms in the Securities Purchase Agreement referred to below.
BACKGROUND
WHEREAS,
the Senior Lender has made a loan to Sequiam Corporation, a California
corporation (the “Company”) pursuant to, and in accordance with, (i) that
certain Securities Purchase Agreement dated as of the date hereof by and between
the Company and Laurus (as amended, modified or supplemented from time to time,
the "Securities Purchase Agreement") and (ii) the Related Agreements referred to
in the Securities Purchase Agreement.
WHEREAS,
the Subordinated Lenders have made loans to the Company and/or Subsidiaries of
the Company.
NOW,
THEREFORE, the Subordinated Lender and the Senior Lender agree as
follows:
TERMS
1. All
obligations of each the Company and/or any of its Subsidiaries to the Senior
Lender, howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent or now or hereafter existing, or due or to become due are
referred to as “Senior Liabilities”. Any and all loans made by the Subordinated
Lender to the Company and/or any of its Subsidiaries, together with all other
obligations of the Company and/or any of its Subsidiaries to the Subordinated
Lender (including any interest, fees or penalties related thereto), howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent or now or hereafter existing, or due or to become due are referred to
as “Junior Liabilities”. It is expressly understood and agreed that the term
“Senior Liabilities”, as used in this Agreement, shall include, without
limitation, any and all interest, fees and penalties accruing on any of the
Senior Liabilities after the commencement of any proceedings referred to in
paragraph 4 of this Agreement, notwithstanding any provision or rule of law
which might restrict the rights of the Senior Lender, as against the Company,
its Subsidiaries or anyone else, to collect such interest, fees or penalties, as
the case may be.
2. Except as
expressly otherwise provided in this Agreement or as the Senior Lender may
otherwise expressly consent in writing, the payment of the Junior Liabilities
shall be postponed and subordinated to the payment in full of all Senior
Liabilities. Furthermore, no payments or other distributions whatsoever in
respect of any Junior Liabilities shall be made, nor shall any property or
assets of the Company or any of its Subsidiaries be applied to the purchase or
other acquisition or retirement of any Junior Liability. Notwithstanding
anything to the contrary contained in this paragraph 2 or elsewhere in this
Agreement, the Company and its Subsidiaries may make regularly scheduled
principal and interest payments, as the case may be, to the Subordinated Lenders
with respect to the Junior Liabilities, so long as (i) no Event of Default (as
defined in the Note) has occurred and is continuing at the time of any such
payment and (ii) the amount of such regularly scheduled principal payments and
the rate of interest, in each case, with respect to the Junior Liabilities is
not increased from that in effect on the date hereof.
3. The
Subordinated Lender hereby subordinates all security interests that have been,
or may be, granted by the Company and/or any of its Subsidiaries to such
Subordinated Lender in respect of the Junior Liabilities, to the security
interests granted by the Company and/or any of its Subsidiaries to the Senior
Lender in respect of the Senior Liabilities.
4. In the
event of any dissolution, winding up, liquidation, readjustment, reorganization
or other similar proceedings relating to the Company and/or any of its
Subsidiaries or to its creditors, as such, 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
marshalling of the assets and liabilities of the Company and/or any of its
Subsidiaries, or any sale of all or substantially all of the assets of the
Company and/or any of its Subsidiaries, or otherwise), the Senior Liabilities
shall first be paid in full before the Subordinated Lender shall be entitled to
receive and to retain any payment or distribution in respect of any Junior
Liability.
5. The
Subordinated Lender will xxxx his books and records so as to clearly indicate
that their respective Junior Liabilities are subordinated in accordance with the
terms of this Agreement. The Subordinated Lender will execute such further
documents or instruments and take such further action as the Senior Lender may
reasonably request from time to time request to carry out the intent of this
Agreement.
6. The
Subordinated Lender hereby waives all diligence in collection or protection of
or realization upon the Senior Liabilities or any security for the Senior
Liabilities.
7. No
Subordinated Lender will without the prior written consent of the Senior Lender:
(a) attempt to enforce or collect the Junior Liability or any rights in respect
of any Junior Liability; or (b) commence, or join with any other creditor
in commencing, any bankruptcy, reorganization or insolvency proceedings with
respect to the Company and/or any of its Subsidiaries.
8. The
Senior Lender may, from time to time, at its sole discretion and without notice
to the Subordinated Lender, 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 their 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.
9. The
Senior Lender may, from time to time, whether before or after any discontinuance
of this Agreement, without notice to the Subordinated Lender, assign or transfer
any or all of the Senior Liabilities or any interest in the Senior Liabilities;
and, notwithstanding any such assignment or transfer or any subsequent
assignment or transfer of the Senior Liabilities, 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 in the Senior Liabilities 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 the Senior Lender, as applicable; provided, however, that,
unless the Senior Lender shall otherwise consent in writing, the Senior 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 the Senior Lender,
as to those of the Senior Liabilities which the Senior Lender has not assigned
or transferred.
10. The
Senior Lender shall not be prejudiced in its rights under this Agreement by any
act or failure to act of the Subordinated Lender, or any noncompliance of the
Subordinated Lender with any agreement or obligation, regardless of any
knowledge thereof which the Senior Lender may have or with which the Senior
Lender may be charged; and no action of the Senior Lender permitted under this
Agreement shall in any way affect or impair the rights of the Senior Lender and
the obligations of the Subordinated Lender under this Agreement.
11. No delay
on the part of the Senior Lender in the exercise of any right or remedy shall
operate as a waiver of such right or remedy, and no single or partial exercise
by the Senior Lender of any right or remedy shall preclude other or further
exercise of such right or remedy 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 the Senior Lender except as expressly set forth in a writing
duly signed and delivered on behalf of the Senior Lender. For the purposes of
this Agreement, Senior Liabilities shall have the meaning set forth in Section 1
above, notwithstanding any right or power of the Subordinated Lender 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 Subordinated Lender under this
Agreement.
12. This
Agreement shall be binding upon the Subordinated Lender and upon the heirs,
legal representatives, successors and assigns of the Subordinated Lender and the
successors and assigns of the Subordinated Lender.
13. This
Agreement shall be construed in accordance with and governed by the laws of New
York without regard to conflict of laws provisions. 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.
IN
WITNESS WHEREOF, this Agreement has been made and delivered this 27th day of
October, 2004.
|
EAGLE
FUNDING, LLC | |||
|
By: |
/s/ Xxxxxx Xxxxxxx | ||
|
Name: |
Xxxxxx
Xxxxxxx | ||
|
Title: |
Manager | ||
| XXX XXXXXXXX XXXXXX, ATTORNEY-IN-FACT FOR THE TRUST UNDER THE WILL OF XXXX XXXXXXXXXXX | |||
|
By: |
/s/ Xxx Xxxxxxxx Xxxxxx | ||
|
Name: |
|||
|
Title: |
|||
| Acknowledged and Agreed to by: | |||
| SEQUIAM CORPORATION | |||
| By: |
/s/
Xxxx Xxxxxxxxxxx |
||
| Name: |
Xxxx
Xxxxxxxxxxx |
||
| Title: |
Senior
VP and Chief Financial Officer |
||
