INTERCREDITOR AND SUBORDINATION AGREEMENT
INTERCREDITOR
AND SUBORDINATION AGREEMENT dated as of August 2, 2007, made by and between
RADCLIFFE SPC, LTD. FOR AND ON BEHALF OF THE CLASS A SEGREGATED PORTFOLIO,
a
Cayman Islands segregated portfolio company, as collateral agent for the Junior
Lenders defined below (in such capacity, the "Junior Agent"),
THE BANK OF NEW YORK, a New York corporation, as collateral agent for the Senior
Lenders (in such capacity, the "Senior Agent" and together with
the Junior Agent, the "Agent") and FIREPOND, INC. (formerly, FP
Technology, Inc., a Delaware corporation, the
"Obligor"),
WITNESSETH:
WHEREAS,
the Obligor and The Bank of New York, as trustee for the Holders (in such
capacity and together with its successors and assigns in such capacity, the
"Trustee"), are parties to an Indenture dated as of January 24,
2007 (as amended, restated, supplemented or otherwise modified from time to
time, the "Indenture"), providing, subject to the terms and
conditions thereof, for the issuance by the Obligor of the Notes (as defined
in
the Indenture) (as such Notes may be amended, restated, replaced or otherwise
modified from time to time in accordance with the terms thereof, collectively,
the "SeniorNotes");
WHEREAS,
each of the "Holders" as defined in the Indenture (together with their
successors or assigns, each a "Senior Lender" and collectively,
the "Senior Lenders") has entered into a Securities Purchase
Agreement dated January 24, 2007 (as amended, restated or otherwise modified
from time to time, the "SeniorSPA") with the
Obligor providing, subject to the terms and conditions thereof, for the purchase
of the Senior Notes and related "Warrants" (as defined therein) from the
Obligor;
WHEREAS,
pursuant to the "Security Documents" (as defined in the Indenture) (the
"Senior Security Documents"), the Obligor has granted to the
Senior Agent, for the benefit of itself and the Senior Lenders, a first priority
lien on, and security interest in, substantially all of its assets and any
proceeds thereof;
WHEREAS,
the Obligor intends to enter into contemporaneously herewith , a Securities
Purchase Agreement (the "Junior SPA") with each party listed as
a "Buyer" on the Schedule of Buyers attached thereto (together with their
successors and assigns, each a "Junior Lender" and
collectively, the "Junior Lenders"), pursuant to which the
Obligor shall agree to sell, and the Junior Lenders agree to purchase, the
"Notes" (as defined in the Junior SPA) to be issued pursuant thereto (as such
Notes may be amended, restated, replaced or otherwise modified from time to
time
in accordance with the terms thereof, collectively, the "Junior
Notes");
WHEREAS,
pursuant to the "Security Documents" (as defined in the Junior SPA) (the
"Junior Security Documents"), the Obligor has granted to the
Junior Agent, for the benefit of itself and the Junior Lenders, a first priority
lien on, and security interest in, substantially all of its assets and any
proceeds thereof; and
WHEREAS,
the Senior Agent, on behalf of the Senior Lenders, the Obligor and the Junior
Agent, on behalf of the Junior Lenders, wish to set forth the terms and
conditions pursuant to which the indebtedness of the Obligor existing from
time
to time in favor of the Junior Lender pursuant to the Junior Indebtedness (as
herein defined) shall be subordinate to the prior payment in full of all of
the
Obligations as set forth herein from time to time existing in favor of the
Senior Lenders pursuant to the Senior Loan Documents (as herein
defined).
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NOW,
THEREFORE, in consideration of the premises hereof, the Senior Agent and the
Junior Lender hereby agree as follows:
Section
1. Definitions
and Rules of Construction.
(a) Definitions. The
following terms, as used in this Agreement, shall have the following
meanings:
"Accounts"
means all the Obligor's now owned or hereafter acquired right, title, and
interest with respect to "accounts" (as that term is defined in the UCC), and
any and all supporting obligations in respect thereof.
"Agreement"
means this Intercreditor and Subordination Agreement together with any and
all
amendments, extensions, modifications, riders, addenda, exhibits, and schedules
hereto.
"Bankruptcy
Case" means any proceeding commenced by or against the Obligor, under
any provision of the Bankruptcy Code or under any other federal or state
bankruptcy or insolvency law, including assignments for the benefit of
creditors, formal or informal moratoria, compositions, extensions generally
with
its creditors, or proceedings seeking reorganization, arrangement, or other
similar relief, and all converted or succeeding cases in respect
thereof.
"Bankruptcy
Code" means the United States Bankruptcy Code (11 U.S.C. § 101,
etseq.), as amended, and any successor statute.
"Books"
means the Obligor's now owned or hereafter acquired books and records (including
all of their Records indicating, summarizing, or evidencing their assets
(including the Collateral) or liabilities, all of their Records relating to
their business operations or financial condition, and all of their goods or
General Intangibles related to such information).
"Business
Day" means any day that is not a Saturday, Sunday or other day on which
national banks are authorized or required to close in New York
City.
"Collateral"
means all of each Obligor's presently existing and hereafter acquired personal
property, including, without limitation, such Obligor's Accounts, Books,
Equipment, General Intangibles, Inventory, Investment Property and Negotiable
Collateral; all of each Obligor's Real Property and leases for Real Property;
all money or other assets of each Obligor that now or hereafter come into the
possession, custody, or control of a Secured Creditor; and the proceeds and
products, whether tangible or intangible, of any of the foregoing, including
proceeds of insurance covering any or all of the foregoing, and any and all
Accounts, Books, Equipment, General Intangibles, Goods, Inventory, Intellectual
Property, Supporting Obligations, Instruments, Investment Property, Negotiable
Collateral, Commercial Tort Claims, Deposit Accounts, Documents, Real Property,
leases for Real Property, money, deposit accounts, or other tangible or
intangible property resulting from the sale, exchange, collection, or other
disposition of any of the foregoing, or any portion thereof or interest
therein.
"Copyrights"
means all
domestic and foreign copyrights, whether registered or not, including, without
limitation, all copyright rights throughout the universe (whether now or
hereafter arising) in any and all media (whether now or hereafter developed),
in
and to all original works of authorship fixed in any tangible medium of
expression, acquired or used by the Obligor, all applications, registrations
and
recordings thereof (including, without limitation, applications, registrations
and recordings in the United States Copyright Office or in any similar office
or
agency of the United States or any other country or any political subdivision
thereof), and all reissues, divisions, continuations, continuations in part
and
extensions or renewals thereof.
"Documents"
means, collectively, the Senior Documents and the Junior Documents.
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"Equipment"
means all of the Obligor's now owned or hereafter acquired right, title, and
interest with respect to equipment, machinery, machine tools, motors, furniture,
furnishings, fixtures, vehicles (including motor vehicles), vessels, tools,
parts, goods (other than consumer goods, farm products, or Inventory), wherever
located, including all attachments, accessories, accessions, replacements,
substitutions, additions, and improvements to any of the foregoing.
"General
Intangibles" means all of the Obligor's now owned or hereafter acquired
right, title, and interest with respect to general intangibles as defined in
the
UCC (including payment intangibles, contract rights, rights to payment,
judgments, rights arising under common law, statutes, or regulations, choses
or
things in action, goodwill, patents, designs, inventions, trade names, trade
secrets, d/b/a's, Internet domain names, logos, trademarks, servicemarks,
copyrights, blueprints, drawings, purchase orders, customer lists, monies due
or
recoverable from pension funds, route lists, rights to payment and other rights
under any royalty or licensing agreements, infringement claims, computer
programs, information contained on computer disks or tapes, software,
literature, reports, catalogs, money, deposit accounts, insurance premium
rebates, tax refunds, and tax refund claims), and any and all supporting
obligations in respect thereof, and any other personal property other than
goods, Accounts, Investment Property, and Negotiable Collateral.
"Guarantor"
mans any person that is or becomes a guarantor of the Senior Indebtedness or
the
Junior Indebtedness after the date hereof.
"Intellectual
Property" means the Copyrights, Trademarks and Patents and all licenses
related thereto.
"Inventory"
means all of the Obligor's now owned or hereafter acquired right, title, and
interest with respect to inventory, including goods held for sale or lease
or to
be furnished under a contract of service, goods that are leased by the Obligor
as lessor, goods that are furnished by the Obligor under a contract of service,
and raw materials, work in process, or materials used or consumed in the Obligor
business.
"Investment
Property" means all the Obligor's now owned or hereafter acquired
right, title, and interest with respect to "investment property" as that term
is
defined in the UCC, and any and all supporting obligations in respect
thereof.
"Junior
Documents" means, collectively, the Junior SPA, the Junior Notes, the
Junior Security Agreement and any other document, instrument, mortgage or
agreement now existing or in the future entered into evidencing, documenting,
securing, or otherwise relating to the Junior Indebtedness or the Collateral,
together with any amendments, replacements, substitutions, or restatements
thereof.
"Junior
Indebtedness" means any and all presently existing or hereafter arising
indebtedness, claims, debts, liabilities, obligations, fees and expenses of
the
Obligor owing to the Junior Lender under the Junior Documents, whether direct
or
indirect, whether contingent or of any other nature, character, or description
(including all interest and other amounts accruing after commencement of any
Bankruptcy Case, and any interest and other amounts that, but for the provisions
of the Bankruptcy Code, would have accrued and become due or otherwise would
have been allowed), and any refinancings, renewals, refundings, or extensions
of
such amounts.
"Junior
Notes" has the meaning set forth in the Recitals to this
Agreement.
"Junior
Lenders" has the meaning set forth in the preamble to this Agreement
and shall include all subsequent holders of the Junior
Indebtedness.
"Junior
Security Agreement" has the meaning set forth in the Recitals to this
Agreement.
"Negotiable
Collateral" means all of the Obligor's now owned and hereafter acquired
right, title, and interest with respect to letters of credit, letter of credit
rights, instruments, promissory notes, drafts, documents, and chattel paper
(including electronic chattel paper and tangible chattel paper), and any and
all
supporting obligations in respect thereof.
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"Paid
in Full" means the indefeasible final payment in full in cash of all
such Senior Indebtedness in accordance with the Senior Documents with respect
to
such Senior Indebtedness and such payment shall not be subject to defeasance,
disgorgement, repayment or return for any reason whatsoever. For the
purposes of this Agreement, the Senior Indebtedness shall not be deemed to
have
been paid in full until 90 days following such date on which the Senior Agent
and the Senior Lenders thereof shall have received indefeasible final payment
in
full in cash of all such Senior Indebtedness.
"Patents"
means all
domestic and foreign letters patent, design patents, utility patents, industrial
designs, inventions, trade secrets, ideas, concepts, methods, techniques,
processes, proprietary information, technology, know-how, formulae, rights
of
publicity and other general intangibles of like nature, now existing or
hereafter acquired (including, without limitation, all domestic and foreign
letters patent, design patents, utility patents, industrial designs, inventions,
trade secrets, ideas, concepts, methods, techniques, processes, proprietary
information, technology, know-how and formulae), all applications, registrations
and recordings thereof (including, without limitation, applications,
registrations and recordings in the United States Patent and Trademark Office,
or in any similar office or agency of the United States or any other country
or
any political subdivision thereof), and all reissues, divisions, continuations,
continuations in part and extensions or renewals thereof.
"Person"
means natural persons, corporations, limited liability companies, limited
partnerships, general partnerships, limited liability partnerships, joint
ventures, trusts, land trusts, business trusts, or other organizations,
irrespective of whether they are legal entities, and governments and agencies
and political subdivisions thereof.
"Real
Property" means any estates or interests in real property now owned or
hereafter acquired by the Obligor and the improvements thereto.
"Record"
means information that is inscribed on a tangible medium or which is stored
in
an electronic or other medium and is retrievable in perceivable
form.
"Secured
Creditor" means any of the Senior Agent, the Senior Lenders, the Junior
Agent or the Junior Lenders, or any successor or assignee of any of them, or
any
future holder of Senior Indebtedness or Junior Indebtedness,
respectively.
"Secured
Creditor Remedies" means any action by a Secured Creditor in
furtherance of the sale, foreclosure, realization upon, or the repossession
or
liquidation of any of the Collateral, including, without
limitation: (i) the exercise of any remedies or rights of a "Secured
Creditor" under Article 9 of the UCC, such as, without limitation, the
notification of account debtors; (ii) the exercise of any remedies or rights
as
a mortgagee or beneficiary (or by the trustee on behalf of the beneficiary),
including, without limitation, the appointment of a receiver, or the
commencement of any foreclosure proceedings or the exercise of any power of
sale, including, without limitation, the placing of any advertisement for the
sale of any Collateral; (iii) the exercise of any remedies available to a
judgment creditor; (iv) the exercise of any rights of forfeiture, recession
or repossession of any assets, or (v) any other remedy available in respect
of the Collateral available to such Secured Creditor under any Document to
which
it is a party or under applicable law, provided that Secured Creditor Remedies
shall not include any action taken by a Secured Creditor solely to (A) correct
any mistake or ambiguity in any Documents or (B) remedy or cure any defect
in or lapse of perfection of the lien of a Secured Creditor in the
Collateral.
"Secured
Creditors' Indebtedness" means, collectively, the Senior Indebtedness
and the Junior Indebtedness.
"Senior
Agent" has the meaning set forth in the Recitals to this Agreement and
shall include any successor agent under the Senior Loan Agreements or any
replacement or refinancing thereof.
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"Senior
Documents" means, collectively, the Senior Loan Agreements, the Senior
Security Documents, any Transaction Documents (as defined in the Senior Loan
Agreement) and any other document instrument or agreement now existing or in
the
future entered into evidencing, documenting, securing or otherwise relating
to
the Senior Indebtedness or the Collateral, together with, to the extent not
prohibited by Section 14(a) of this Agreement, any amendments, replacements,
substitutions, or restatements thereof.
"Senior
Indebtedness" means any and all presently existing or hereafter arising
indebtedness, reimbursement obligations, claims, debts, liabilities, obligations
(including, without limitation, any prepayment premium, expenses, indemnities,
commissions and fees of the Obligor owing to the Senior Agent and the Senior
Lenders under the Senior Loan Documents, whether direct or indirect, whether
contingent or of any other nature, character, or description (including all
interest and other amounts accruing after commencement of any Bankruptcy Case,
and all interest and other amounts that, but for the provisions of the
Bankruptcy Code, would have accrued and become due or otherwise would have
been
allowed), and any refinancings, renewals, refundings, or, to the extent
permitted in Section 14(a) hereof, extensions of such amounts.
"Senior
Lenders" has the meaning set forth in the preamble to this Agreement
and shall include all subsequent holders of the Senior
Indebtedness.
"Senior
Loan Agreements" means the Indenture, the Senior SPA and the Senior
Notes.
"Senior
Security Documents" has the meaning set forth in the Recitals to this
Agreement.
“Specified
Collateral” has the meaning set forth in Section 12 of this
Agreement.
"Taking"
has the meaning set forth in Section 9(a) of this Agreement.
"Trademarks"
means all
domestic and foreign trademarks, service marks, collective marks, certification
marks, trade names, business names, d/b/a's, Internet domain names, trade
styles, designs, logos and other source or business identifiers and all general
intangibles of like nature, now or hereafter owned, adopted, acquired or used
by
the Obligor (including, without limitation, all domestic and foreign trademarks,
service marks, collective marks, certification marks, trade names, business
names, d/b/a's, Internet domain names, trade styles, designs, logos and other
source or business identifiers), all applications, registrations and recordings
thereof (including, without limitation, applications, registrations and
recordings in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any state thereof or any other country
or
any political subdivision thereof), and all reissues, extensions or renewals
thereof, together with all goodwill of the business symbolized by such marks
and
all customer lists, formulae and other Records of the Obligor relating to the
distribution of products and services in connection with which any of such
marks
are used.
"UCC"
means the Uniform Commercial Code as adopted in the State of New York, or in
such other jurisdiction as governs the perfection of the liens and security
interests in the Collateral for the purposes of the provisions hereof relating
to such perfection or effect of perfection.
(b) UCC
Definitions. All other capitalized terms used in this Agreement
that are defined in the UCC shall have the meanings given to them in the UCC
unless otherwise expressly defined herein.
(c) Other
Definitional Provisions. When used in this
Agreement: (i) the words "herein," "hereof," and "hereunder" and
words of similar import shall refer to this Agreement as a whole and not to
any
provision of this Agreement; (ii) the words "include," "includes," and
"including" are not limiting; the word "or" has, except where otherwise required
by the context, the inclusive meaning represented by the phrase "and/or"; (iii)
unless otherwise specified, the words "Section," "Schedule" and "Exhibit" refer
to Sections of, and Schedules and Exhibits to, this Agreement unless otherwise
specified; and (iv) the singular number includes the plural, and vice versa,
whenever the context so requires.
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Section
2. Subordination
of Junior Indebtedness.
(a) Blockage
of Payments to the Junior Lender. (i) No payment in
cash or other property or otherwise (excluding securities that are subordinated
to the Senior Indebtedness to the same extent as, or more deeply than, the
Junior Indebtedness is subordinated to the Senior Indebtedness pursuant to
this
Agreement) on account of any Junior Indebtedness shall be made by or on behalf
of the Obligor, and the Junior Lenders will not ask, demand, xxx for, take,
or
receive any such payment, directly or indirectly, from or on behalf of the
Obligor, if at the time of such payment or immediately after giving effect
thereto there shall have occurred and be continuing a Default or an Event of
Default (each as defined in any Senior Documents).
(ii) If
at any
time following a blockage of payments to the Junior Lenders pursuant to
paragraph (a) of this Section 2.1, the Junior Lenders are no longer
prohibited from receiving any payments with respect to the Junior Indebtedness
by such Section, the Junior Lenders shall be entitled to receive all payments
with respect to the Junior Indebtedness that have been blocked together with
any
default interest to the extent provided for by the Junior
Documents.
(b) Prohibition
of Payments of Junior Indebtedness on Acceleration or in Bankruptcy
Case. (i) Upon (x) any acceleration of the principal amount due
on any Junior Indebtedness or (y) any payment or distribution of assets of
the
Obligor, of any kind or character, whether in cash, property or securities,
following commencement of a Bankruptcy Case, all amounts due or to become due
upon all Senior Indebtedness shall first be Paid in Full, before any payment
is
made on account of any of the Junior Indebtedness; and following commencement
of
a Bankruptcy Case, any payment or distribution of assets of the Obligor of
any
kind or character, whether in cash, property or securities, to which the Junior
Lenders would be entitled, except for the provisions hereof, shall be paid
by
the Obligor or any other Person making such payment or distribution, or by
any
Junior Lender if received by it, directly to the Senior Lenders, to the extent
necessary to result in all Senior Indebtedness being Paid in Full, before any
payment or distribution is made to any Junior Lender.
(ii) In
any
Bankruptcy Case by or against the Obligor,
(i) the
Senior Agent may, and are hereby irrevocably authorized and empowered (in their
own name or in the name of Junior Agent or the Junior Lenders), but shall have
no obligation, to, (A) demand, xxx for, collect and receive every payment or
distribution referred to in this Section 2.2 and give acquittance therefor
and
(B) file claims and proofs of claim in respect of the Junior Indebtedness
and take such other action (including, without limitation, voting the Junior
Indebtedness or enforcing any security interest or other lien securing payment
of the Junior Indebtedness) as the Senior Agent may reasonably deem necessary
or
advisable for the exercise or enforcement of any of the rights or interests
of
the Senior Agent or the Senior Lenders hereunder, provided that the Senior
Agent
may only file claims and proofs of claims in respect of the Junior Indebtedness
if there shall remain not more than 30 days before such action is barred,
prohibited or otherwise cannot be taken; and
(ii) the
Junior Agent and each Junior Lender will duly and promptly take such action
as
the Senior Agent may reasonably request (A) to collect the Junior
Indebtedness for the account of the Senior Agent and the Senior Lenders and
in
its reasonable business judgment, to file appropriate claims or proofs of claim
with respect thereto, (B) to execute and deliver to the Senior Agent such powers
of attorney, assignments or other instruments as the Senior Agent may request
in
order to enable it to enforce any and all claims with respect to, and any
security interests and other liens securing payment of, the Junior Indebtedness,
and (C) to collect and receive for the account of the Senior Agent and the
Senior Lenders any and all payments or distributions which may be payable or
deliverable upon or with respect to the Junior Indebtedness.
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(c) Payments
Held in Trust/Turnover. In the event that, notwithstanding the
foregoing, any payment or distribution of assets of the Obligor, whether in
cash, property or securities, prohibited by this Agreement shall be received
by
any Junior Lender before all Senior Indebtedness is Paid in Full such payment
or
distribution shall be held in trust for the benefit of and shall be paid over
to
or delivered to the Senior Agent for the benefit of the Senior Lenders, until
the Senior Indebtedness shall have been Paid in Full.
(d) Subrogation,
Etc. No payment or distribution to the Senior Agent or any Senior
Lender pursuant to the provisions of this Agreement shall entitle the Junior
Lender to exercise any rights of subrogation, contribution, reimbursement or
indemnity in respect thereof until all Senior Indebtedness shall have been
Paid
in Full. After the Senior Indebtedness has been Paid in Full, the
Junior Agent and the Junior Lenders shall be subrogated to the rights of the
Senior Agent and the Senior Lenders to receive payments or distributions of
assets of the Obligor applicable to the Senior Indebtedness until all amounts
owing in respect of the Junior Indebtedness shall be paid in full, and for
the
purpose of such subrogation, no such payments or distributions to the Senior
Lenders by or on behalf of the Obligor or by or on behalf of the Junior Lenders
by virtue of this Agreement which otherwise would have been made to the Junior
Lenders shall, as among the Obligor, their creditors other than the Senior
Lenders and the Junior Lenders, be deemed to be payment by the Obligor to or
on
account of the Senior Indebtedness, it being understood that the above
provisions relating to subordination are solely for the purpose of defining
the
relative rights of the Senior Agent and the Senior Lenders on the one hand,
and
the Junior Agent and the Junior Lender, on the other hand.
Section
3. Permitted
Liens and Relative Priorities. As among the Secured Creditors,
and notwithstanding the terms (including the description of Collateral), dating,
execution, or delivery of any document, instrument, or agreement; the time,
order, method, or manner of granting, or perfection of any security interest
or
lien; the time of filing or recording of any financing statements, assignments,
deeds of trust, mortgages, or any other documents, instruments, or agreements
under the UCC or any other applicable law; and any provision of the UCC or
any
other applicable law to the contrary, the Secured Creditors agree:
(a) The
Senior Agent, on behalf of the Senior Lenders, shall have a first priority
security interest in and lien upon the Collateral which shall be senior in
all
respects and prior to any lien upon the Collateral held by Junior Agent, on
behalf of the Junior Lenders; and
(b) The
Junior Agent, on behalf of the Junior Lenders, shall have a second priority
security interest in and lien upon the Collateral, which shall be junior and
subordinate in all respects regardless of how acquired, whether by grant,
statute, operation of law, subrogation or otherwise, to any lien upon the
Collateral held by the Senior Agent, on behalf of the Senior
Lenders.
For
purposes of the foregoing allocation of priorities, any claim of a right to
a
setoff shall be treated in all respects as a security interest and no claimed
right of setoff shall be asserted to defeat or diminish the rights or priorities
provided for herein.
If
the Junior Agent or any Junior
Lender shall acquire and hold a lien on any assets of the Obligor which assets
are not also subject to the lien of the Senior Agent, on behalf of the Senior
Lenders, then notwithstanding any term of the Senior Loan Documents
or the Junior Loan Documents to the contrary, the Junior Agent shall
be deemed to hold such lien for the benefit of the Senior Agent and
the Senior Lenders to secure the obligations of the Obligor to the Senior
Lender, subject in all cases to the lien priority and other provisions of this
Agreement.
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Section
4. No
Alteration of Priority. The lien and security interest priorities
provided in Section 3 shall not be altered or otherwise affected by any
amendment, modification, supplement, extension, renewal, restatement or (to
the
extent permitted in Section 14(a) hereof) refinancing of any of the Senior
Indebtedness or any Junior Indebtedness nor by any action or inaction which
any
Secured Creditor may take or fail to take in respect of the Collateral. The
Secured Creditors consent to the Obligor's granting to each other Secured
Creditor the liens and security interests reflected in Section 3.
Section
5. Perfection. Each
of the Secured Creditors shall be solely responsible for, and nothing herein
shall prohibit any Secured Creditor from, perfecting and maintaining the
perfection of its lien or security interest in any of the Collateral in which
such party has been granted a lien or security interest. The
provisions of this Agreement are intended solely to govern the respective
priorities as among the Secured Creditors. The Junior Agent, on
behalf of the Junior Lenders agrees that it will not directly or indirectly
take
any action to contest or challenge the validity, legality, perfection, priority,
availability, or enforceability of the liens of any Senior Lenders upon the
Collateral or seek to have the same avoided, disallowed, set aside, or otherwise
invalidated in any judicial proceeding or otherwise.
Section
6. Exercise
of Remedies; Management of Collateral. Notwithstanding anything
to the contrary contained in any of the Documents:
(a) Until
all
Senior Indebtedness has been Paid in Full: (i) the Senior Agent
shall have the exclusive right to manage, perform, and enforce the terms of
the
Senior Documents with respect to the Collateral and to exercise and enforce
all
privileges and rights thereunder in their sole discretion, including, without
limitation, the exclusive right to enforce or settle insurance claims with
respect to Collateral, take or retake control or possession of Collateral and
to
hold, prepare for sale, process, sell, lease, dispose of, or liquidate
Collateral; (ii) the Junior Lenders shall not accelerate the principal
amount due on any Junior Indebtedness and neither the Junior Agent nor any
Junior Lender shall exercise any Secured Creditor Remedies with respect to
Collateral or commence, or join with any other creditor other than the Senior
Agent or the Senior Lenders in commencing, any Bankruptcy Case; and
(iii) any and all proceeds of Collateral which shall come into the
possession, control, or custody of the Junior Agent or any Junior Lender (x)
from the exercise or enforcement of remedies by the Junior Agent or on behalf
of
any Junior Lender or (y) otherwise (except with respect to payments of Junior
Indebtedness not prohibited under Section 2(a)) will be deemed to have been
received for the account of the Senior Agent and the Senior Lenders and shall
be
immediately paid over to the Senior Agent.
(b) In
connection with the provisions of clause 6(a)(i) above, the Junior Agent and
each Junior Lender waives any and all rights to affect the method or challenge
the appropriateness of any action by the Senior Agent with respect to the
Collateral, and waives any claims or defenses they may have against the Senior
Agent or any Senior Lenders, including any such claims or defenses based on
any
actions or omissions of any such person in connection with the perfection,
maintenance, enforcement, foreclosure, sale, liquidation or release of any
lien
or security interest therein, or any modification or waiver of any Senior
Documents.
(c) The
rights and priorities set forth in this Agreement shall remain binding
irrespective of the terms of any plan of reorganization in a Bankruptcy Case
or
other provisions of the Bankruptcy Code or any similar federal or state
statute.
Section
7. Sale
of Collateral.
(a) Until
the
Senior Indebtedness has been Paid in Full: (i) only the Senior
Agent, on behalf of the Senior Lenders, shall have the right to restrict or
permit, or approve or disapprove, the sale, transfer or other disposition of
the
Collateral; and (ii) the Junior Agent will, immediately upon the request of
the Senior Agent, release or otherwise terminate its liens and security
interests upon the Collateral, to the extent such Collateral is sold or
otherwise disposed of in a commercially reasonable manner by the Obligor with
the consent of the Senior Agent in accordance with the Senior Documents, and
the
Junior Agent, on behalf of the Junior Lenders, will immediately deliver such
release documents as the Senior Agent may require in connection therewith;
provided, however, that if any such sale or disposition results in
a surplus after the Senior Indebtedness has been Paid in Full, such surplus
shall be paid to the Junior Agent, for application in accordance with the terms
of the Junior Documents.
(b) If
the
Junior Agent or any Junior Lender shall attempt any Secured Creditor Remedies
or
attempt any other action prohibited or restricted under this Agreement, the
Obligor or the Senior Agent may interpose as a defense or plea the making of
this Agreement and the Senior Agent may intervene and interpose such defense
in
its name or in the name of the Obligor and the Obligor or the Senior Agent
may
by virtue of this Agreement restrain the enforcement thereof in the name of
the
Obligor or the Senior Agent, on behalf of the Senior
Lenders. Notwithstanding anything to the contrary, any payment or
distribution of cash, assets or securities of the Obligor received by the Junior
Agent or any Junior Lender prior to all Senior Indebtedness being Paid in Full,
shall be held by the Junior Agent or such Junior Lender in trust for and paid
over to the Senior Agent for application to the Senior Indebtedness until such
Senior Indebtedness is Paid in Full.
(c) This
Section 7 shall not be construed in any way to limit or impair the right of
(i) any Secured Creditor to bid for and purchase Collateral at any private
or judicial foreclosure upon such Collateral initiated by any other Secured
Creditor, (ii) the Junior Agent or any Junior Lender to join (but not
control) any foreclosure or other judicial lien enforcement proceeding with
respect to such Collateral initiated by the Senior Agent thereon, so long as
it
does not delay or interfere with the exercise by the Senior Agent or any Senior
Lender of their rights and (iii) subject to the terms of this Agreement,
the right of the Junior Agent or any Junior Lender on any Collateral to receive
payments from the proceeds of the collection, sale or other disposition of
such
Collateral.
-8-
Section
8. Sections
9-611 and 0-000 Xxxxxx and Waiver of Marshalling. Each Secured
Creditor hereby acknowledges that this Agreement shall constitute notice of
the
other Secured Creditors' respective interests in the Collateral as provided
by
Sections 9-611, 9-613 of the UCC and each of the Secured Creditors waives any
right to compel the other Secured Creditors to marshal any of the Collateral
or
to seek payment from any particular assets of the Obligor or from any third
party.
Section
9. Insurance
or Condemnation. In the event of:
(a) a
taking
or threatened taking by condemnation or other eminent domain of all or any
portion of any Real Property (collectively, a "Taking")
or
(b) the
occurrence of a fire or other casualty resulting in damage to all or any portion
of any Collateral (collectively, a "Casualty"):
(i) the
Junior Agent and each Junior Lender hereby waives any right to participate
or
join in any adjustment, compromise, or settlement of any claims resulting from
a
Taking or a Casualty with respect to any Collateral;
(ii) all
proceeds received or to be received on account of a Taking and/or Casualty
shall
be applied in the manner or manners provided for in the Senior Documents until
the Senior Indebtedness shall have been Paid in Full; and
(iii) the
Junior Agent and each Junior Lender agrees to execute and deliver any documents,
instruments, agreements or further assurances required to effectuate any of
the
foregoing.
Section
10. Bankruptcy
Issues.
(a) Except
as
provided in this Section 10, this Agreement shall continue in full force and
effect after the commencement of a Bankruptcy Case (all references herein to
Obligor being deemed to apply to Obligor as debtor-in-possession and to a
trustee for Obligor' estate in a Bankruptcy Case), and shall apply with full
force and effect with respect to all Collateral acquired by such Obligor, and
to
all Secured Creditors' Indebtedness incurred by Obligor, subsequent to such
commencement.
(b) If
the
Obligor shall become subject to a Bankruptcy Case, and if the Senior Agent
and
the Senior Lenders shall desire to permit the use of cash collateral or to
provide post-petition financing to such Obligor, the Junior Agent and each
Junior Lender agrees as follows: (i) adequate notice to the
Junior Agent and the Junior Lenders shall be deemed to have been provided for
such use of cash collateral or post-petition financing if the Junior Agent
receive notice thereof at least five (5) Business Days prior to any hearing
on a
request to approve such use of cash collateral or post-petition financing;
and
(ii) no objection will be raised by the Junior Agent or any Junior Lender
to any such use of cash collateral or such post-petition financing by the Senior
Agent or Senior Lenders, on the grounds of a failure to provide adequate
protection for the Junior Agent's junior liens and security interests in the
Collateral, provided that the Junior Agent, on behalf of the Junior Lenders,
is
granted the same liens and security interests on the post-petition Collateral
that may be granted to or for the benefit of the Senior Agent on behalf
of the Senior Lenders, junior only to the liens or security interests
of the Senior Agent on behalf of the Senior Lenders
therein. No objection will be raised by the Junior Agent or the
Junior Lenders the Senior Agent's motion for relief from the automatic stay
in
any proceeding under the Bankruptcy Code to foreclose on and sell the
Collateral.
(c) Without
limiting the generality of the foregoing, until the Senior Indebtedness has
been
Paid in Full, the Junior Agent, on behalf of each Junior Lender agrees that
the
Senior Agent may consent to the sale or disposition of any or all of the
Collateral in any bankruptcy, assignment for the benefit of creditors or similar
proceedings against the Obligor (whether such sale or disposition is to be
made
pursuant to Section 363 of the Bankruptcy Code, pursuant to a plan of
reorganization, or otherwise), and if such sale or disposition is commercially
reasonable, the Junior Agent, on behalf of the Junior Lenders, in its capacity
as a secured creditor, shall be deemed to have consented to any such sale or
disposition and all of the terms applicable thereto and shall, if requested
to
do so by the Senior Agent in connection with any such sale or disposition and
with the release of the Senior Agent's Liens on the Collateral, promptly execute
and deliver to the Senior Agent a release of such Junior Agent's Liens with
respect to the Collateral to be sold or disposed.
-9-
Section
11. Notice
of Default and Certain Events. Each Secured Creditor shall send
written notice to each other Secured Creditor upon the occurrence of any of
the
following as applicable:
(a) the
declaration of any default under such Secured Creditor's Documents, or the
acceleration of any of such Secured Creditor's Indebtedness; or
(b) the
commencement of any sale or liquidation of, or realization upon, any of the
Collateral.
Each
such
notice shall be sent to each other Secured Creditor contemporaneously with
the
sending of such notice to Obligor if and when sent under the applicable
Documents. The failure of any Secured Creditor to give such notice
shall not affect the relative lien or security interest priorities or the other
privileges of such Secured Creditor as provided in this Agreement or give rise
to any liability.
Section
12. Bailment. With
respect to any Collateral in which a security interest may be perfected under
the UCC or other relevant law only by possession or with respect to which the
rights or interests granted to the Junior Agent, on behalf of the holders of
the
Junior Lenders, may be precluded by or inconsistent with the rights or interests
granted to the Senior Agent, on behalf of the Junior Lenders (the
"Specified Collateral"), the Senior Agent will act as
pledgeholder for the Junior Agent until the payment in full in cash of the
Senior Indebtedness, whereupon possession of or the other rights with respect
to
any such Specified Collateral remaining shall be immediately transferred to
the
Junior Agent for the benefit of itself and the Junior Lenders; and immediately
upon such transfer of possession or the other rights the Junior Agent shall
become the pledgeholder of the Specified Collateral. The Junior Agent
acknowledges and agrees that: (a) the Senior Agent does not make
any representation or warranty whatsoever as to the nature, extent, description,
validity or priority of any Specified Collateral or the security interests
in or
liens upon any Specified Collateral; (b) while any Specified Collateral is
held by the Senior Agent, the Senior Agent shall not have any liability to,
and
shall be held harmless by, the Junior Agent and the Junior Lenders, for any
losses, damages, claim, or liability of any kind to the extent arising out
of
the holding of such Specified Collateral, other than losses, damages, claims,
or
liabilities arising out of the Senior Agent's gross negligence or willful
misconduct; (c) the Senior Agent need not act as a pledgeholder for the
Junior Agent or any Junior Lender with respect to any Collateral in which a
security interest may be perfected by means other than possession; (d) the
Junior Agent shall immediately deliver to the Senior Agent any Specified
Collateral that is now in or in the future comes into its possession; and
(e) the priority of the Secured Creditors' security interests in and liens
upon the Specified Collateral shall be governed by the terms of this
Agreement.
Section
13. Authority
of Agents/Trustees.
(a) The
Senior Agent represents and warrants that the execution, delivery and
performance by it of this Agreement has been duly authorized by the Senior
Lenders and that this Agreement constitutes the legal, valid and binding
obligation of the Senior Agent and the Senior Lenders, enforceable against
each
of them in accordance with its terms.
(b) The
Junior Agent represents and warrants that the execution, delivery and
performance by it of this Agreement has been duly authorized by the Junior
Lenders and that this Agreement constitutes the legal, valid and binding
obligation of the Junior Agent and the Junior Lender, enforceable against each
of them in accordance with its terms.
(c) Any
assignment or transfer of an interest in any of the Junior Indebtedness shall
be
made expressly subject to the terms and conditions of this Agreement and any
assignment or transfer of an interest in contravention of this provision shall
be null and void.
-10-
Section
14. Modification
of Documents; Additional Covenants.
(a) The
Junior Agent agrees that the Senior Agent shall have absolute power and
discretion, without notice to the Junior Agent or any Junior Lender, to deal
in
any manner with the Senior Indebtedness, including, but not by way of
limitation, the power and discretion to do any of the following: (i)
any demand for payment of any Senior Indebtedness may be rescinded in whole
or
in part, and any Senior Indebtedness may be continued, and the Senior
Indebtedness or the liability of Obligor upon or for any part thereof, or any
Collateral or guaranty therefor, or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, modified,
accelerated, compromised, waived, surrendered, or released; and (ii) the
Senior Documents may be amended, modified, supplemented, refinanced, renewed,
refunded, extended or terminated, in whole or in part, as the Senior Lenders
may
deem advisable from time to time; and (iii) any Collateral may be sold,
exchanged, waived, surrendered, or released. The Junior Agent and
each Junior Lender will remain bound under this Agreement, and the subordination
provided for herein shall not be impaired, abridged, released, or otherwise
affected notwithstanding any such renewal, extension, modification,
acceleration, compromise, amendment, supplement, termination, sale, exchange,
waiver, surrender, or release. The Senior Indebtedness shall
conclusively be deemed to have been created, contracted, or incurred in reliance
upon this Agreement, and all dealings between the Senior Agent and each Senior
Lender on the one hand, and the Obligor, on the other hand, shall be deemed
to
have been consummated in reliance upon this Agreement.
(i) Without
the prior written consent of the Senior Agent, the Junior Lenders agree not
to
amend, modify or supplement in whole or in part, any terms or provisions of
any
Junior Document.
(ii) So
long
as any of the Senior Indebtedness shall remain outstanding, neither the Junior
Agent nor any Junior Lender will not, without the prior written consent of
the
Senior Agent:
(i) (A) except
as otherwise expressly permitted in this Agreement, cancel or otherwise
discharge any Junior Indebtedness (except upon payment in full thereof to the
Junior Lenders or the Senior Lenders as contemplated hereby), or
(B) subordinate any Junior Indebtedness to any indebtedness of the Obligor
other than the Senior Indebtedness;
(ii) sell,
assign, pledge, encumber or otherwise dispose of any Junior Indebtedness unless
such sale, assignment, pledge, encumbrance or disposition is made expressly
subject to this Agreement; or
(iii) commence,
or join with any Person (whether or not such Person is a creditor of the
Obligor) other than the Senior Lenders in commencing, any Bankruptcy
Case.
Section
15. The
Junior Lender's Waivers. The Junior Agent and each Junior Lender
waives: (a) any and all notice of the creation, modification,
renewal, extension, or accrual of any of the Senior Indebtedness and notice
of
or proof of reliance by Senior Lenders upon this Agreement; (b) agrees not
to assert against the Senior Agent or any Senior Lender, any rights which a
guarantor or surety could exercise, but nothing in this Agreement shall
constitute the Junior Agent or any Junior Lender as a guarantor or surety;
and
(c) prior to the time the Senior Indebtedness is Paid in Full, any right of
subrogation, contribution, reimbursement, or indemnity which it may have against
the Obligor arising directly or indirectly out of this Agreement.
-11-
Section
16. Binding
Effect; Other. This Agreement shall be a continuing agreement,
shall be binding upon and shall inure to the benefit of the parties hereto
from
time to time and their respective successors and assigns, shall be irrevocable,
and shall remain in full force and effect until the Senior Indebtedness shall
have been Paid in Full, and the Senior Documents shall have been irrevocably
terminated, but shall continue to be effective, or be reinstated, as the case
may be, if any payment, or any part thereof, of any amount paid by or on behalf
of the Obligor with regard to any Senior Indebtedness is rescinded or must
otherwise be restored or returned upon or as a result of any Bankruptcy Case,
or
for any other reason, all as though such payments had not been
made. Any waiver or amendment hereunder must be evidenced by a signed
writing of the party to be bound thereby, and shall only be effective in the
specific instance. This Agreement and the rights and obligations of
the parties under this Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York. The
parties agree that any actions arising out of or in connection with this
Agreement shall be tried and litigated in the state and federal courts located
in the County of New York, in the State of New York. The headings in
this Agreement are for convenience of reference only, and shall not alter or
otherwise affect the meaning hereof.
Section
17. Parties
Intended to be Benefited. All of the understandings, covenants,
and agreements contained herein are solely for the benefit of the Senior Agent,
the Senior Lenders, the Junior Agent, the Junior Lenders, their respective
successors and assigns, and future holders of the Senior Indebtedness and the
Junior Indebtedness respectively, and there are no other parties, including
the
Obligor or any of their creditors, successors, or assigns, which are intended
to
be benefited, in any way, by this Agreement.
Section
18. No
Limitation Intended. Nothing contained in this Agreement is
intended to or shall affect or limit, in any way, the rights that the Senior
Agent, the Senior Lenders, the Junior Agent or the Junior Lenders have with
respect to any third parties. The Senior Agent, the Senior Lenders,
the Junior Agent and the Junior Lenders hereby specifically reserve all of
their
respective rights against the Obligor and all other third parties.
Section
19. Notice. Whenever
it is provided herein that any notice, demand, request, consent, approval,
declaration, or other communication shall or may be given to or served upon
any
of the parties hereto, or whenever any of the parties desires to give or serve
upon the other communication with respect to this Agreement, each such notice,
demand, request, consent, approval, declaration, or other communication shall
be
in writing and shall be delivered either in person or by registered, or
certified United States mail, postage prepaid, by facsimile, or by recognized
overnight courier service, addressed as follows:
(a) If
to the
Senior Agent, at:
THE
BANK OF NEW YORK
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxxx
Xxx
Xxxx,
XX 00000
Attn: ______________
Fax
No. ______________
with
a
copy (for informational purposes only) to each of:
XXXXX,
XXXXXX & XXXXXX, LLP
000
Xxxxxxxx - 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx Xxxxxx
Fax
No.
(000) 000-0000
and
XXXXXXX
XXXX & XXXXX LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxx, Esq.
Fax
No. 212.593.5955
(b) If
to the
Junior Agent, at:
_______________________
_______________________
_______________________
with
a
copy to:
_______________________
_______________________
_______________________
Attn: ________________
Fax
No. _______________
(c) If
to the
Obligor, at:
000
Xxxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
Xxxxx, CEO
Copy
to:
VORYS,
XXXXX, XXXXXXX AND XXXXX LLP
2100
One
Cleveland Center
0000
Xxxx
Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000-0000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxx
X. Xxxxxxxx, Esq.
or
at
such other address as may be substituted by notice given as herein
provided. Giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Every notice,
demand, request, consent, approval, declaration or other communication hereunder
shall be deemed to have been duly given when received.
-12-
Section
20. Severability. Whenever
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.
Section
21. Complete
Agreement. This Agreement constitutes the complete agreement and
understanding of each of the Secured Creditors, and supersedes all prior or
contemporaneous oral and written negotiations, agreements and understandings,
express or implied, with respect to the subject matter hereof.
Section
22. No
Joint Venture. Each of the Secured Creditors acknowledges and
confirms that this Agreement shall not create a joint venture, agency or
fiduciary relationship.
Section
23. Counterparts. This
Agreement may be executed in any number of counterparts, and by the parties
each
in separate counterparts, each of which shall be an original, but all of which
shall together constitute one and the same Agreement.
Section
24. Waiver
of Jury Trial. THE SENIOR AGENT, EACH SENIOR LENDERS, THE JUNIOR
AGENT AND EACH JUNIOR LENDER HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY
OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT
OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE SENIOR AGENT, THE SENIOR LENDERS, THE JUNIOR
AGENT AND THE JUNIOR LENDER WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED BY ANY OF THEM IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH
CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR
TORT OR OTHERWISE. THE SENIOR AGENT, EACH SENIOR LENDER, THE JUNIOR
AGENT AND EACH JUNIOR LENDER HEREBY AGREE AND CONSENT THAT ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT JURY, AND
THAT
ANY OF THEM MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT TO THE WAIVER OF RIGHT TO TRIAL BY
JURY.
Section
25. Specific
Performance. Each of the parties agrees and acknowledges that in
the event of any breach of this Agreement, the non-breaching party would be
irrevocably harmed and would not be made whole by monetary
damages. It is accordingly agreed that the parties hereto shall and
do hereby waive the defense in any action for specific performance that a remedy
at law would be adequate and that the parties hereto, in addition to any other
remedy to which they made be entitled at law or in equity, shall be entitled
to
compel specific performance of this Agreement in any action instituted in the
Supreme Court of the State of New York or the United States District Court
of
the Southern District of New York, or, in the event such courts shall not have
jurisdiction of such action, in any court of the United States or any state
thereof having subject matter jurisdiction of such actions.
Section
26. Legend;
Further Assurances.
(i) The
Junior Agent and each Obligor will cause each Junior Loan Document and any
other
instrument or agreement hereafter securing, evidencing or guaranteeing any
Junior Indebtedness to be indorsed with substantially the following
legend:
"The
indebtedness evidenced by this instrument is subordinated to the prior payment
in full of the Senior Indebtedness (as defined in the Intercreditor Agreement
hereinafter defined) pursuant to, and to the extent provided in, the
Intercreditor and Subordination Agreement, dated as of ______ __, 2007,
(the "Intercreditor Agreement") among The Bank of New York, in its
capacity as trustee and collateral agent (the "Senior Agent"), pursuant
to the Indenture dated as of January 24, 2007, between the Senior Agent and
Firepond, Inc. (formerly known as FP Technology, Inc.)."
(ii) Each
Junior Lender and the Obligor will (i) xxxx their books or accounts or take
such
other action as shall be effective to give reasonable notice of the effect
of
this Agreement and (ii) in the case of any Junior Indebtedness which is not
evidenced by any instrument, upon Senior Agent's request, cause such Junior
Indebtedness to be evidenced by an appropriate instrument or instruments
indorsed with the above legend. The Junior Agent, the Junior Lenders
and Obligor will, at its expense and at any time and from time to time, promptly
execute and deliver all further instruments and other documents, and take all
further action, that may be necessary or, in the opinion of the Senior Agent,
desirable, or that the Senior Agent may request, in order to protect any right
or interest granted or purported to be granted hereby or to enable the Senior
Agent or any Senior Lender to exercise and enforce their rights and remedies
hereunder.
Section
27. Obligations Unconditional. All rights of the Senior Agent and the
Senior Lenders hereunder shall remain in full force and effect irrespective
of
(a) any lack of validity or enforceability of any Transaction Agreements (as
defined in the Indenture), any agreement with respect to any of the Obligations
(as defined in the Indenture) or any other agreement or instrument relating
to
any of the foregoing, (b) any change in the time, manner or place of payment
of,
or in any other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to any departure from any Transaction Agreements
or
any other agreement or instrument, (c) any exchange, release or non-perfection
of any lien on other collateral, or any release or amendment or waiver of or
consent under or departure from any guarantee, securing or guaranteeing all
or
any of the Obligations, (d) the commencement of any Bankruptcy Case in respect
of the Obligor, or (e) any other circumstance that might otherwise constitute
a
defense available to, or a discharge of, the Obligor in respect of the
Obligations or this Agreement.
[SIGNATURE
PAGE FOLLOWS]
-13-
IN
WITNESS WHEREOF, Senior Agent, for and on behalf of itself and the Senior
Lenders and Junior Agent, for and on behalf of itself and the Junior Lenders,
have caused this Agreement to be duly executed and delivered as of the date
first above written.
JUNIOR
AGENT
Radcliffe
SPC, Ltd. for and on behalf of the Class A Segregated
Portfolio
By: /s/Xxxxxx
X.
Xxxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxxx
Title:
Managing Director
THE
BANK OF NEW YORK,
as
Senior
Agent
By: /s/Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
Assistant Treasurer
ACKNOWLEDGMENT
Obligor
hereby acknowledges that it has received a copy of the foregoing Intercreditor
Agreement and consents thereto, agree to recognize all rights granted thereby
to
Senior Agent, the Senior Lenders, Junior Agent, and the Junior Lenders and
will
not do any act or perform any obligation which is not in accordance with the
agreements set forth therein. The Obligor acknowledges and agrees
that it are not an intended beneficiary or third party beneficiary under this
Agreement.
ACKNOWLEDGED
AS OF THE DATE FIRST WRITTEN ABOVE:
|
By:
/s/Xxxxxxx
Xxxxx
Name:
Xxxxxxx Xxxxx
Title: Chief
Financial Officer
|
