SUBORDINATION AND INTERCREDITOR AGREEMENT
Exhibit 4.14
This
Subordination and Intercreditor Agreement (as amended, restated or otherwise
modified from time to time, this “Agreement”) is
entered into as of the 15th day of January, 2010, by and among the Law Offices
of Xxxxx X. Xxxxx, P.A., a professional association licensed to practice law in
the State of Florida (“DJS”), Professional
Title and Abstract Company of Florida, Inc., a corporation organized under the
laws of the State of Florida (“PTA”), Default
Servicing, Inc., a corporation organized under the laws of the State of Florida
(“DSI”), Xx.
Xxxxx X. Xxxxx in his capacity as secured party representative for PTA, DJS and
DSL (in such capacity, the “Junior Secured Party
Representative”, and collectively with PTA, DJS and DSI, the “Subordinated Parties”
and each a “Subordinated Party”),
and each of the lenders set forth on Schedule 1 hereto
party to the Senior Loan Agreement (as hereafter defined) (each, a “Senior Lender” and
collectively the “Senior
Lenders”). Unless otherwise defined herein, capitalized terms
used herein shall have the meanings provided such terms in the Senior Loan
Agreement (as hereafter defined).
BACKGROUND
WHEREAS,
it is a condition to each Senior Lender’s making a loan to DAL Group, LLC, a
Delaware limited liability company (the “Company”) pursuant
to, and in accordance with (i) that certain Senior Loan, Security and Pledge
Agreement to be dated on or about January 15, 2010 by and among the Senior
Lenders, Chardan Capital Markets, LLC in its capacity as secured party
representative for the Senior Lenders (in such capacity, the “Senior Secured Party
Representative”) and the Company (as amended, restated or otherwise
modified from time to time, the “Senior Loan
Agreement”) and (ii) the Loan Documents referred to in the Senior Loan
Agreement (the “Loan
Documents”), that the Subordinated Parties enter into this
Agreement.
WHEREAS,
the Subordinated Parties have granted or will grant certain financial
accommodations to the Company.
NOW,
THEREFORE, each Subordinated Party and each Senior Lender hereby agree as
follows:
TERMS
1. All
obligations of the Company and/or any of its Subsidiaries to any Senior Lender
under the Loan Documents, 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”. The Term Note Obligations and the Post Closing
Cash Obligations as defined in that certain Loan, Security and Pledge Agreement,
dated as of the date of this Agreement, by and among DJS, PTA, DSI and the
Company (the “Junior
Loan Agreement”), together with the obligations of any Subsidiaries of
the Company with respect to such Term Note Obligations and Post Closing Cash
Obligations, 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 any Senior Lender, as against the Company,
its Subsidiaries or anyone else, to collect such interest, fees or penalties, as
the case may be.
1
2. Except as
expressly otherwise provided in this Agreement or as the Lenders may otherwise
expressly consent in writing, the payment of the Junior Liabilities shall be
postponed and subordinated in right of payment and priority to the payment in
full of all Senior Liabilities. Furthermore, whether directly or
indirectly, no payments or other distributions whatsoever in respect of any
Junior Liabilities shall be made (whether at stated maturity, by acceleration or
otherwise), 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 until such time as the Senior Liabilities have been
indefeasibly paid in full. Notwithstanding anything to the contrary
contained in this paragraph 2 or elsewhere in this Agreement, the Company and
its Subsidiaries may make payments as required by the terms of the Junior
Liabilities to the Subordinated Parties with respect to the Junior Liabilities,
so long as (i) no Event of Default (as defined in the Senior Loan Agreement
and/or any other Loan Document) has occurred and is continuing at the time of
any such payment or after giving effect to such payment and (ii) the timing and
the calculation of the payments set forth in the Junior Loan Agreement, the Term
Note (as defined in the Junior Loan Agreement) and the Post-Closing Cash
Documents (as defined in the Junior Loan Agreement) are not changed from the
timing and calculations in effect on the date hereof.
3. Each
Subordinated Party hereby subordinates all claims and security interests it may
have against, or with respect to, any of the assets of the Company and/or any of
its Subsidiaries (the “Subordinated Party
Liens”), to the security interests granted by the Company and/or any of
its Subsidiaries to each Senior Lender and the Senior Secured Party
Representative (on behalf of the Senior Lenders) in respect of the Senior
Liabilities. Neither the Senior Secured Party Representative nor any
Senior Lender shall owe any duty to any Subordinated Party as a result of or in
connection with any Subordinated Party Liens, including without limitation any
marshalling of assets or protection of the rights or interests of any
Subordinated Party. The Senior Lenders and the Senior Secured Party
Representative (on behalf of the Senior Lenders) shall have the exclusive right
to manage, perform and enforce the underlying terms of the Senior Loan
Agreement, the Loan Documents and each other document, instrument and agreement
executed from time to time in connection therewith (collectively, the “Security Agreements”)
relating to the assets of the Company and its Subsidiaries and to exercise and
enforce its rights according to its discretion. Each Subordinated
Party waives all rights to affect the method or challenge the appropriateness of
any action taken by any Senior Lenders and/or the Senior Secured Party
Representative (on behalf of the Senior Lenders) in connection with any Senior
Lender’s and/or Senior Secured Party Representative’s enforcement of its rights
under the Security Agreements. In connection with the exercise by any
Senior Lender and/or the Senior Secured Party Representative (on behalf of the
Senior Lenders) of its remedies under the Senior Loan Agreement, only the Senior
Lenders and/or the Senior Secured Party Representative (on behalf of the Senior
Lenders) shall have the right to restrict, permit, approve or disapprove the
sale, transfer or other disposition of the assets of the Company or any of its
Subsidiaries. As between each Senior Lender and each Subordinated
Party, the terms of this Agreement shall govern even if all or part of any
Senior Lender’s and/or Senior Secured Party Representative’s (on behalf of the
Senior Lenders) liens are avoided, disallowed, set aside or otherwise
invalidated.
2
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 irrevocably paid in full before any Subordinated Party shall be
entitled to receive and to retain any payment, distribution, other rights or
benefits in respect of any Junior Liability. In order to enable each Senior
Lender and the Senior Secured Party Representative (on behalf of the Senior
Lenders) to enforce its rights hereunder in any such action or proceeding, each
Senior Lender and the Senior Secured Party Representative (on behalf of the
Senior Lenders) is hereby irrevocably authorized and empowered in its discretion
as attorney in fact for each Subordinated Party to make and present for and on
behalf of such Subordinated Party such proofs of claims against the Company
and/or its Subsidiaries as any Senior Lender and/or the Senior Secured Party
Representative (on behalf of the Senior Lenders) may deem expedient or proper
and to vote such proofs of claims in any such proceeding and to receive and
collect any and all dividends or other payments or disbursements made thereon in
whatever form the same may be paid or issued and to apply same on account of any
the Senior Liabilities. In the event, prior to indefeasible payment
in full of the Senior Liabilities, any Subordinated Party shall receive any
payment in respect of the Junior Liabilities and/or in connection with the
enforcement of such Subordinated Party’s rights and remedies against the Company
and/or any of its Subsidiaries, except as permitted in this Agreement, whether
arising in connection with the Junior Liabilities or otherwise, then such
Subordinated Party shall forthwith deliver, or cause to be delivered, the same
to the Senior Secured Party Representative (who shall distribute the same to the
Senior Lenders based on each Senior Lender’s Term Loan Commitment) in precisely
the form held by such Subordinated Party (except for any necessary endorsement)
and until so delivered the same shall be held in trust by such Subordinated
Party as the property of the Senior Lenders.
5. Each
Subordinated Party will xxxx its/his books and records so as to clearly indicate
that its/his respective Junior Liabilities are subordinated in accordance with
the terms of this Agreement. Each Subordinated Party will execute
such further documents or instruments and take such further action as any Senior
Lender and/or the Senior Secured Party Representative (on behalf of the Senior
Lenders) may reasonably request from time to time to carry out the intent of
this Agreement.
6. Each
Subordinated Party 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 Party will without the prior written consent of the Senior Secured
Party Representative (on behalf of the Senior Lenders): (a) attempt
to enforce or collect any 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.
3
8. Any
Senior Lender and/or the Senior Secured Party Representative (on behalf of the
Senior Lenders) may, from time to time, at its sole discretion and without
notice to any Subordinated Party, 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. Notwithstanding anything to the contrary set forth in this
Agreement, the Senior Lender and the Senior Secured Party Representative, on
behalf of the Senior Lenders, agree that the principal amount of the Senior Debt
(as defined in the Junior Loan Agreement) will not be increased from the
principal amount on the date hereof, without the prior written consent of DJS,
PTA and DSI.
9. Any
Senior Lender may, from time to time, whether before or after any discontinuance
of this Agreement, without notice to any Subordinated Party, 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 a Senior Lender, as applicable; provided, however, that, unless
such Senior Lender shall otherwise consent in writing, the Senior Lenders 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 Lenders, as
to those of the Senior Liabilities which the Senior Lenders have not assigned or
transferred.
10. The
Senior Lenders shall not be prejudiced in their rights under this Agreement by
any act or failure to act of any Subordinated Party, or any noncompliance of any
Subordinated Party with any agreement or obligation, regardless of any knowledge
thereof which any Senior Lender may have or with which any Senior Lender may be
charged; and no action of any Senior Lender permitted under this Agreement shall
in any way affect or impair the rights of any other Senior Lender and the
obligations of any Subordinated Party under this Agreement.
11. No delay
on the part of any Senior Lender and/or the Senior Secured Party Representative
(on behalf of the Senior Lenders) 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 any Senior Lender and/or the Senior Secured Party Representative (on behalf
of the Senior Lenders) 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 permitted except as expressly set forth in a writing duly signed and
delivered by the Senior Lenders and the Subordinated Parties. For the
purposes of this Agreement, Senior Liabilities shall have the meaning set forth
in Section 1
above, notwithstanding any right or power of any Subordinated Party 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 any Subordinated Party under this
Agreement.
4
12. This
Agreement shall continue in full force and effect after the filing of any
petition (“Petition”) by or
against the Company and/or any of its Subsidiaries under the United States
Bankruptcy Code (the “Code”) and all
converted or succeeding cases in respect thereof. All references
herein to the Company and/or any Subsidiary shall be deemed to apply to the
Company and such Subsidiary as debtor-in-possession and to a trustee for the
Company and/or such Subsidiary. If the Company or any of its
Subsidiaries shall become subject to a proceeding under the Code, and if the
Senior Lenders shall desire to permit the use of cash collateral or to permit or
provide post-Petition financing from any Senior Lender (or an affiliate or a
third party satisfactory to the Senior Lenders) to the Company or any such
Subsidiary under the Code, each Subordinated Party agrees as
follows: (1) adequate notice to such Subordinated Party
shall be deemed to have been provided for such consent or post-Petition
financing if such Subordinated Party receives notice thereof three (3) business
days (or such shorter notice as is given to the Senior Lenders) prior to the
earlier of (a) any hearing on a request to approve such post-petition financing
or (b) the date of entry of an order approving same and (2) no objection will be
raised by any Subordinated Party to any such use of cash collateral or such
post-Petition financing from any Senior Lender (or an affiliate of the Senior
Lender).
13. This
Agreement shall be binding upon each Subordinated Party and upon the heirs,
legal representatives, successors and assigns of each Subordinated Party and the
successors and assigns of any Subordinated Party. This Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original and all of which together shall be deemed to constitute one
agreement. It is understood and agreed that if facsimile copies of
this Agreement bearing facsimile signatures are exchanged between the parties
hereto, such copies shall in all respects have the same weight, force and legal
effect and shall be fully as valid, binding, and enforceable as if such signed
facsimile copies were original documents bearing original
signature.
14. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED
ACCORDING TO, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS PROVISIONS THEREOF AND SHALL BE BINDING UPON THE PARTIES HERETO
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. ANY ACTION BROUGHT CONCERNING THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE BROUGHT ONLY IN THE STATE
COURTS OF NEW YORK OR IN THE FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK;
PROVIDED, HOWEVER, THAT ANY SENIOR LENDER MAY CHOOSE TO WAIVE THIS PROVISION AND
BRING AN ACTION OUTSIDE THE STATE OF NEW YORK. The individuals
executing this Agreement on behalf of the Subordinated Parties agree to submit
to the jurisdiction of such courts and waive trial by jury. The
prevailing party shall be entitled to recover from the other party its
reasonable attorneys’ fees and costs. 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.
[signature
pages follow]
5
IN
WITNESS WHEREOF, this Agreement has been made and delivered as of this 15th day
of January, 2010.
LAW
OFFICES OF XXXXX X. XXXXX, P.A.
By:
____________________________
Name: ____________________________
Title:
____________________________
DEFAULT
SERVICING, INC.
By:
____________________________
Name: ____________________________
Title:
____________________________
PROFESSIONAL
TITLE & ABSTRACT COMPANY OF FLORIDA, INC.
By:
____________________________
Name: ____________________________
Title:
____________________________
_______________________________________
XXXXX X.
XXXXX, in his capacity as Junior Secured Party Representative
[LENDER]
By:
____________________________
Name: ____________________________
Title:
____________________________
CHARDAN
CAPITAL MARKETS, LLC, in its capacity as Senior Secured Party
Representative
By:
____________________________
Name: ____________________________
Title:
____________________________
6
Acknowledged
and Agreed to by:
DAL
GROUP, LLC, a limited liability company
organized
under the laws of the State of Delaware
By:
____________________________
Name: ____________________________
Title:
____________________________
DJS
PROCESSING, LLC
By:
____________________________
Name: ____________________________
Title:
____________________________
PROFESSIONAL
TITLE AND ABSTRACT COMPANY OF FLORIDA, LLC
By:
____________________________
Name: ____________________________
Title:
____________________________
DEFAULT
SERVICING, LLC
By:
____________________________
Name: ____________________________
Title:
____________________________
|
SIGNATURE
PAGE TO
SUBORDINATION
AGREEMENT
|
7
