INTERCREDITOR AGREEMENT
This Intercreditor Agreement is made as of this 20th day of November, 2001,
by and among Vizacom Inc., a Delaware corporation ("Vizacom"), SpaceLogix, Inc.,
a Delaware corporation ("SpaceLogix"), Xxxxxxx & Xxxxxxxx, LLC, a New York
limited liability company ("K&M"), Xxxxx X. Xxxxx and Xxxxxxx XxXxxxxx
(together, the "Former PWR Shareholders," and together with K&M and SpaceLogix,
the "Subordinated Parties") and JPMorgan Chase Bank ("Chase", and collectively
with the Subordinated Parties, the "Creditors").
WHEREAS, Vizacom granted to SpaceLogix a security interest (the "Spacelogix
Interest") in and to that certain promissory note, dated as of March 31, 2001,
in the original aggregate principal amount of $987,500 issued by Serif Inc. to
Vizacom (the "Collateral"), upon the terms and conditions contained in a
Security Agreement, dated as of September 14, 2001, between Vizacom and
SpaceLogix;
WHEREAS, Vizacom granted to K&M a security interest (the "K&M Interest") in
and to the Collateral upon the terms and conditions contained in a Security
Agreement, dated as of September 28, 2001, between Vizacom and K&M;
WHEREAS, Vizacom granted to the Former PWR Shareholders a security interest
(the "Former PWR Shareholder Interest") in and to the Collateral upon the terms
and conditions contained in a Security Agreement, dated as of September 28,
2001, between Vizacom and the Former PWR Shareholders;
WHEREAS, as among the Subordinated Parties, the SpaceLogix Interest is
first in priority and senior to the K&M Interest and the Former PWR Shareholder
Interest;
WHEREAS, as among the Subordinated Parties, the K&M Interest is second in
priority, junior to the SpaceLogix Interest and senior to the Former PWR
Shareholder Interest;
WHEREAS, as among the Subordinated Parties, the Former PWR Shareholder
Interest is third in priority, and junior to the SpaceLogix Interest and the K&M
Interest;
WHEREAS, in order to induce Chase from time to time to extend credit or
other financial accommodations to Vizacom and its affiliates, Vizacom is willing
to assign its rights to Chase (the "Chase Interest") in and to the Collateral
and deliver possession of the Collateral to Chase upon the terms and conditions
contained in an Assignment, dated as of November 20, 2001, between Vizacom and
Chase, securing Vizacom's obligation to guaranty the payment of the Promissory
Note, dated November 20, 2001, payable by PWR Systems, Inc. to Chase (as
extended, renewed, modified or restructured from time to time, the "PWR Note");
WHEREAS, as among the Creditors, the Chase Interest is first in priority
and senior to the SpaceLogix Interest, the K&M Interest and the Former PWR
Shareholder Interest, as applicable;
WHEREAS, Vizacom has requested that the Subordinated Parties acknowledge
the priority of the Chase Interest and subordinate their security interests in
the Collateral to that of Chase, and the Subordinated Parties believe that it is
in their best interest to do so; and
WHEREAS, the Subordinated Parties desire to enter into this Intercreditor
Agreement to subordinate their security interests in the Collateral to Chase and
to confirm their respective rights and priorities in and to the Collateral.
NOW, THEREFORE, the parties agree as follows:
1. Subordination.
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(a) Each of the Subordinated Parties hereby expressly agree (i)
that the Chase Interest is senior in priority to the security interests of
the Subordinated Parties, (ii) to subordinate their respective security
interests in and to the Collateral to the Chase Interest, (iii) not to take
any action to demand or foreclose on the Collateral or accept any payments in
respect thereof so long as the PWR Note is outstanding, and (iv) that the new
order of priority with respect to the Collateral shall be as set forth in
Section 1(b) of this Agreement.
(b) The following shall be the order of priority in and to the
Collateral: (i) the Chase Interest shall be first in priority, so long as
the PWR Note is outstanding; (ii) the SpaceLogix Interest shall be second in
priority; (iii) the K&M Interest shall be third in priority; and (iv) the
Former PWR Shareholder Interest shall be fourth in priority.
(c) So long as the PWR Note is outstanding, each of the Subordinated
Parties hereby expressly waive Vizacom's obligation to comply with the
provisions of Section 3(a) of each of the Subordinated Parties' respective
Security Agreements, and their right to receive any direct payments from Serif
Inc. and agree not to accept any such direct payments from Serif Inc.
2. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with and shall be governed by the laws of the State of
New York, without regard to the principles of conflicts of laws or the actual
domiciles of the parties hereto.
3. Binding Effect. This Agreement shall bind and inure to the benefit of
the parties hereto, their successors and assigns.
4. Notices. All notices, requests, demands and other communications which
are required to be or which may be given under this Agreement shall be in
writing and shall be deemed to have been duly given when: (a) transmitted by
facsimile transmission electronically confirmed for receipt, (b) delivered by
hand against written receipt therefor, (c) received after dispatch by Express
Mail, Federal Express, other overnight delivery service or by certified or
registered first class mail return receipt requested, in any such case with
delivery charges prepaid, to the party to whom the same is so given or made, at
the following addresses (or such other address as shall be provided by notice in
accordance with this Section 4):
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(a) If to Vizacom Inc., to:
0000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: President
Facsimile: (000) 000-0000
(b) If to SpaceLogix, Inc., to:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Facsimile: (000) 000-0000
(c) If to K&M, to:
Xxxxxxx & Xxxxxxxx, LLC
00 Xxxxxxx Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx Field, New York 11553
Attention: Xxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(d) If to Xxxxxxx XxXxxxxx, to:
c/o PWR Systems, Inc.
0000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx XxXxxxxx
Facsimile: (000) 000-0000
(e) If to Xxxxx X. Xxxxx, to:
c/o PWR Systems, Inc.
0000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
(f) If to Chase, to:
JPMorgan Chase Bank
Special Loan Group
0 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
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Attention: Xxxxxxx Xxxxxxxxx
Vice President
Facsimile: (000) 000-0000
5. Headings. The headings in this Agreement are for purposes of reference
only and shall not be considered in construing this Agreement.
6. Counterparts. This Agreement may be executed in counterparts, all of
which shall be deemed to be duplicate originals.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
VIZACOM INC.
By: /s/ Xxxxxxx XxXxxxxx
---------------------------------------
Name: Xxxxxxx XxXxxxxx
Title: President
SPACELOGIX, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: CFO
XXXXXXX & XXXXXXXX, LLC
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx, Esq.
Member
/s/ Xxxxxxx XxXxxxxx
----------------------------------------
Xxxxxxx XxXxxxxx
/s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
JPMORGAN CHASE BANK
By: /s/ Xxxxxxxxxxx Xxxxxxxxxx
----------------------------------------
Vice President
Xxxxxxxxxxx Xxxxxxxxxx
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