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Exhibit 10.16
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT ("Agreement") dated as of
November 17, 1999, is between LASALLE BANK NATIONAL ASSOCIATION (hereinafter
referred to as "Bank"), having offices at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, and ALLIANCE LAUNDRY SYSTEMS LLC, having offices at Xxxxxxx
Xxxxxx, XX Xxx 000, Xxxxx, Xxxxxxxxx 00000-0000 (hereinafter referred to as
"Alliance"), with respect to certain financing arrangements with SPINCYCLE,
INC., having its office at 00000 Xxxxxxxx/Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000 ("Borrower").
BACKGROUND:
A. Pursuant to a certain Amended and Restated Loan and
Security Agreement dated as of November 17, 1999 and certain instruments,
documents and other agreements related thereto, defined therein or contemplated
thereby (the foregoing, together with all amendments and modifications thereof
now and from time to time hereafter entered into between Bank and Borrower are
individually or collectively referred to as the "Bank Agreements"), Bank has or
will from time to time hereafter, make loans and advances to Borrower secured by
liens on the Collateral (hereinafter defined).
B. Borrower is obligated and indebted to Alliance in the
amount of Three Million Dollars ($3,000,000) as evidenced by a Promissory Note
("Note") and secured by liens on the Collateral as set forth in a Loan and
Security Agreement dated as of November 17, 1999, between Borrower and Alliance
and certain instruments, documents and other agreements related thereto, defined
therein or contemplated thereby (the foregoing, together with all amendments and
modifications thereof now and from time to time hereafter entered into between
Alliance and Borrower are individually or collectively referred to as the
"Alliance Agreements").
C. Alliance and Bank have each (i) been granted liens on the
Collateral, and (ii) filed or may hereafter file financing statements under the
Uniform Commercial Code and other title documents or assignments.
D. Alliance and Bank desire to agree to the relative priority
of their respective security interests in and liens on the Collateral and
certain other rights, priorities and interests.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, and for other good and valuable
consideration, it is hereby agreed as follows:
I. DEFINITIONS
1.1 Accounts shall mean all of Borrower's presently existing
and hereafter arising or acquired accounts, accounts receivable, book debts,
instruments, documents, contracts, contract rights, choses in action, notes,
drafts, acceptances, chattel paper, and other forms of obligations now or
hereafter owned or held by or payable to Borrower relating in any way to
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Inventory or arising from the sale of Inventory or the rendering of services by
Borrower, together with all merchandise represented by any of the Accounts;
all such merchandise that may be reclaimed or repossessed or returned to
Borrower; all of Borrower's rights as an unpaid vendor, including stoppage in
transit, reclamation, replevin, and sequestration; all pledged assets and all
letters of credit, guaranty claims, liens, and security interests held by or
granted to Borrower to secure payment of any Accounts and which are delivered
for or on behalf of any account debtor; all proceeds and products and any
accessions to all of the foregoing described properties and interests in
properties; and all proceeds of insurance with respect thereto, including the
proceeds of any applicable casualty or credit insurance or fidelity bond,
whether payable in cash or in kind; and the proceeds of all of the foregoing;
and all customer lists, ledgers, books of account, records, computer programs,
computer disks or tape files, computer printouts, computer runs, and other
computer prepared information relating to any of the foregoing.
1.2 Equipment shall mean all of Borrower's equipment,
machinery, furniture, furnishings, fixtures, tools, supplies and motor vehicles
and rolling stock, of every kind and description, now or at any time hereafter
owned by and in the custody or possession, actual or constructive, of Borrower,
wherever located, together with any and all parts, improvements, additions,
replacements, accessions, and substitutions thereto or therefor, and all
licenses and other rights of Borrower relating thereto, whether in the
possession and control of Borrower, or in the possession and control of a third
party for the account of Borrower and all claims under and proceeds of insurance
thereon, and all maintenance and warranty records relating thereto.
1.3 General Intangibles shall mean all of Borrower's now owned
or hereafter acquired general intangibles, causes of action, goodwill,
franchises, sales literature, name plates, catalogs, dealer contracts, supplier
contracts, distributor agreements, consulting agreements, engineering contracts,
and such other assets which uniquely reflect the goodwill of the business of
Borrower, rights to refunds or indemnification, deposit accounts, letters of
credit, income tax refunds, claims for tax or other refunds against any city,
county, state, or federal government, or any agency or authority or other
subdivision thereof, contracts, personal property lease agreements, and
corporate or other business records relating to any of the foregoing, other than
any Intellectual Property.
1.4 Intellectual Property shall mean all of Borrower's now
owned or hereafter acquired trademarks, trademark applications, trade styles,
trade names, trade secrets, patents, patent applications, copyrights, copyright
applications and registrations, designs, service marks, service xxxx
applications, inventions, license rights, methods, processes, knowhow, drawings,
specifications, descriptions and confidential information.
1.5 Inventory shall mean all of the inventory of Borrower of
every kind and description, now or at any time hereafter owned by or in the
custody or possession, actual or constructive, of Borrower, wherever located,
including, but not limited to, the following:
(a) all raw materials;
(b) all finished goods which constitute Inventory;
and
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(c) all work in process consisting of goods and all
other raw materials in the process of being converted into finished
goods; together with all the containers, packing, packaging, shipping,
and similar materials, and all rights of Borrower relating thereto,
proceeds (including but not limited to all proceeds of insurance with
respect thereto, including the proceeds of any applicable casualty
insurance) and products thereof; and all ledgers, books of account,
records, computer printouts, computer runs, and other computer prepared
information relating to any of the foregoing.
1.6 Leaseholds shall mean all of Borrower's rights, title and
interest under any lease of real property where any Collateral is located.
1.7 Alliance Claim shall mean all obligations of Borrower to
Alliance as set forth in the Alliance Agreements, up to the aggregate sum of
$3,000,000, plus any interest thereon, any costs of collection or enforcement,
including reasonable attorneys' and paralegals' fees and costs, and any
prepayment penalties.
1.8 Bank Claim shall mean all obligations of Borrower to Bank
as set forth in the Bank Agreements at any time and from time to time
outstanding, including but not limited to, all sums loaned or advanced to or for
the benefit of Borrower at any time, any interest thereon, any future advances,
any costs of collection or enforcement, including reasonable attorneys' and
paralegals' fees and costs, and any prepayment penalties.
1.9 Collateral shall mean all the property or interests in
property described in paragraphs 1.1 through 1.6 hereof, and the proceeds and
products thereof, and where applicable, the proceeds of insurance or escrow
accounts covering any such property.
1.10 Enforcement shall mean, collectively or individually for
one or both of Alliance or Bank, to commence repossession of any material amount
of Collateral or commence the judicial enforcement of any of their rights and
remedies under the Bank Agreements, the Alliance Agreements, any related
agreements or applicable law.
1.11 Enforcement Period shall mean the period of time
following the receipt by either Bank or Alliance of an "Enforcement Notice" (as
hereinafter defined) from another Lender until either (i) the final payment or
indefeasible satisfaction in full of either the Bank Claim or the Alliance
Claim, or (ii) Bank and Alliance agree in writing to terminate the Enforcement
Period.
1.12 Alliance Senior Collateral shall mean the Equipment
listed and described on Exhibit A attached hereto, and the Leaseholds listed and
described on Exhibit A attached hereto, any General Intangibles directly
associated with such Leaseholds and Equipment and the rights to the use of any
Intellectual Property to the extent necessary to the continued operation of
business at such Leaseholds.
1.13 Enforcement Notice shall mean a written notice delivered,
at a time when an "Event of Default" (as defined in the Bank Agreements or the
Alliance Agreements, respectively) has occurred and is continuing, by either
Bank or Alliance to the other announcing that an
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Enforcement Period has commenced, specifying the relevant Event of Default,
stating the current balance of the Bank Claim or Alliance Claim and requesting
the current balance of the other Lender's Claim.
1.14 Lender shall mean each of Bank or Alliance.
1.15 Lenders shall mean the collective reference to Bank and
Alliance.
II. INTERCREDITOR AGREEMENT
2.1 Lien Priorities. Notwithstanding the date, manner or order
of perfection of the security interests and liens granted Alliance or Bank, or
the acquisition of purchase money or other security interests, or the time of
giving or failure to give notice of the acquisition or expected acquisition of
purchase money or other security interests, and notwithstanding any provisions
of the Uniform Commercial Code, or any applicable law or decision or the
Alliance Agreements or the Bank Agreements, or whether either Alliance or Bank
holds possession of all or any part of the Collateral, the following, as between
Alliance and Bank shall be the relative priority of the security interests and
liens of Alliance and Bank in the Collateral:
(a) Bank shall have a first and prior security interest
in the Collateral (exclusive of the Alliance Senior
Collateral), all documents, instruments, books and
records pertaining to the foregoing and all proceeds
thereof, including insurance proceeds relating
thereto, and products thereof (the "Bank Senior
Collateral"), and a second and subordinate security
interest in the Alliance Senior Collateral; and
(b) Alliance shall have a second and subordinate security
interest in the Bank Senior Collateral and a first
and senior security interest in the Alliance Senior
Collateral, all documents, instruments, books and
records pertaining thereto and all proceeds thereof,
including insurance proceeds relating thereto, and
products thereof.
2.2 Distribution of Proceeds of Collateral. At any time
(whether or not an Enforcement Period exists), all proceeds of Collateral shall
be distributed in accordance with the following procedure:
(a) Proceeds of the Bank Senior Collateral shall be first
applied to the Bank Claim. After the Bank Claim is
paid in full and the Bank Agreements are terminated
and fully paid or otherwise satisfied, any remaining
proceeds of the Bank Senior Collateral shall be
applied to the Alliance Claim.
(b) Proceeds of the Alliance Senior Collateral shall be
first applied to the Alliance Claim. After the
Alliance Claim is paid in full and the Alliance
Agreements are terminated and fully paid or otherwise
satisfied, any remaining proceeds of the Alliance
Senior Collateral shall be applied to the Bank Claim.
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Notwithstanding the foregoing, at any time prior to commencement of or after the
termination of any ongoing Enforcement Period, Borrower may utilize working
capital generated in the ordinary course of its business to pay obligations due
Alliance under the Alliance Agreements, whether or not such working capital
represents proceeds of the Bank Senior Collateral.
2.3 Enforcement Actions. Each Lender agrees not to commence
Enforcement until an Enforcement Notice has been given to the other Lender.
Subject to the foregoing and Section 2.2 above, Bank and Alliance agree that
during an Enforcement Period:
(a) Alliance may, at its option, take any action to
accelerate payment of the Alliance Claim and to
foreclose or realize upon or enforce any of its
rights with respect to the Alliance Senior
Collateral, provided that Alliance shall reasonably
cooperate with Bank in any such action in order to
maximize any recovery on the Collateral and shall
provide Bank notice of sale and any offer to purchase
the Alliance Senior Collateral;
(b) Bank may, at its option, take any action to
accelerate payment of the Bank Claim and to foreclose
or realize upon or enforce any of its rights with
respect to the Bank Senior Collateral; provided that
Bank shall reasonably cooperate with Alliance in any
such action in order to maximize any recovery on the
Collateral and shall provide Alliance notice of sale
and any offer to purchase the Bank Senior Collateral.
(c) The parties hereto shall execute and deliver such
additional documents and take such additional action
as may be reasonably necessary to effectuate the
provisions and purposes of this Agreement. If
requested, the parties shall execute filings to be
recorded in accordance with Uniform Commercial Code
provisions in the appropriate locations reflecting
the provisions of this Agreement.
(d) If Alliance or Bank has any security interest in or
lien on any of the Collateral as security for payment
of any indebtedness of Borrower, or of any other
party, other than indebtedness incurred pursuant to
the Alliance Agreements or the Bank Agreements, then
Alliance or Bank, as the case may be, may not apply
the proceeds of any of the Collateral to satisfy such
other indebtedness until the Alliance Claim and the
Bank Claim are paid in full or otherwise satisfied.
2.4 Accountings. Alliance and Bank agree to render accountings
to the other upon reasonable request, giving effect to the application of
proceeds of Collateral as hereinbefore provided.
2.5 Notices of Defaults. Alliance and Bank agree to use their
best efforts to give to the other copies of any notice of the occurrence or
existence of an Event of Default or Potential Default sent to Borrower under the
Bank Agreements or the Alliance Agreements, as applicable, simultaneously with
the sending of such notice to Borrower, but the failure to do so shall not
affect the validity of such notice or create a cause of action against the party
failing to give such
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notice or create any claim or right on behalf of any third party. The sending of
such notice shall not impose upon the recipient the obligation to cure such
Event of Default or Potential Default.
2.6 Action Upon Repayment of Alliance or Bank. If either the
Alliance Claim or the Bank Claim is paid in full, but not both, then the Lender
whose claim is thus fully paid shall transfer any Collateral or excess proceeds
therefrom held by it to the other Lender, unless otherwise required to remit the
proceeds according to law, and shall assign its security interest and all of its
rights under financing statements to the other Lender, unless otherwise agreed
to in writing by the other Lender. Any such transfer or assignment shall be
without recourse.
2.7 Insurance. Notwithstanding anything to the contrary
herein, Borrower shall obtain satisfactory Lender's Loss Payable Endorsements
naming both Alliance and Bank, as their interests may appear, with respect to
policies which insure Collateral hereunder.
2.8 UCC Notices. In the event that Alliance or Bank shall be
required by the Uniform Commercial Code or any other applicable law to give
notice to the other of intended disposition of Collateral, such notice shall be
given in accordance with paragraph 3.1 hereof and ten (10) days' notice shall be
deemed to be commercially reasonable.
2.9 Agency for Perfection. Alliance and Bank each hereby
appoint each other as agent for purposes of perfecting their respective security
interests and liens on the Collateral. To the extent that Bank or Alliance
obtain possession of any Collateral, they shall notify each other of such fact.
2.10 Successor Entity. Alliance warrants and represents that
it is the successor to Raytheon Commercial Laundry LLC and the priorities
established hereby are binding upon Raytheon Commercial Laundry LLC.
III. MISCELLANEOUS
3.1 Notices. All notices hereunder shall be effective upon
receipt, and shall be in writing and sent by either certified mail, return
receipt requested, receipted overnight delivery or facsimile, to the addresses
as set forth above, but to the attention of the following: (a) Alliance,
attention: Xxxxx Xxxxxx, Facsimile No. 920/748-1629, or (b) Bank, attention:
Xxxx Xxxxxxxx, Facsimile No. 312/904-6225, or to such other address or person as
any of the parties hereto may designate in writing to the other parties. Notice
shall be deemed received on the earlier of the date of actual receipt or three
(3) Business Days (as defined in the Bank Agreement) after the deposit thereof
with the United States Post Office or the date telecommunicated if telecopied.
3.2 Contesting Liens or Security Interests. Neither Alliance
nor Bank shall contest the validity, perfection, priority or enforceability of
any lien or security interest granted to the other Lender and each of the
Lenders agrees to cooperate in the defense of any action contesting the
validity, perfection, priority or enforceability of such liens or security
interest. Each Lender shall also use its best efforts to notify the other Lender
of any change in the location of any of the Collateral or the business
operations of the Borrower or of any change in law which would make it necessary
or advisable for the other Lender to file additional financing statements in
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location as against the Borrower, but the failure to do so shall not create a
cause of action against the party failing to give such notice or create any
claim or right on behalf of any third party and Alliance shall not be required
to notify Bank of its shipment of new Equipment to new locations of Borrower.
3.3 No Additional Rights for Borrower Hereunder. If any Lender
shall enforce its rights or remedies in violation of the terms of this
Agreement, Borrower agrees that it shall not use such violation as a defense to
the Enforcement by such Lender under the Alliance Agreements and/or the Bank
Agreements nor assert such violation as a counterclaim or basis for set-off or
recoupment against any Lender. Notwithstanding anything to the contrary
contained in the Bank Agreements and the Alliance Agreements, the execution and
delivery of the Bank Agreements and the Alliance Agreements shall not be deemed
an Event of Default under either the Bank Agreements or the Alliance Agreements.
3.4 Independent Credit Investigations. Neither of the Lenders
nor any of their respective directors, officers, agents or employees shall be
responsible to the other or to any other person, firm or corporation, for
Borrower's solvency, financial condition or ability to repay the Alliance Claim
or the Bank Claim, or for statements of Borrower, oral or written, or for the
validity, sufficiency or enforceability of the Alliance Claim or the Bank Claim,
the Alliance Agreements, the Bank Agreements, or any liens or security interests
granted by Borrower to the Lender in connection therewith. Each Lender has
entered into its respective financing agreements with Borrower based upon its
own independent investigation, and makes no warranty or representation to the
other Lender nor does it rely upon any representation of the other Lender with
respect to matters identified or referred to in this paragraph.
3.5 Amendments to Financing Arrangements or to this Agreement.
Alliance and Bank shall use their best efforts to notify each other of any
amendment or modification in the Alliance Agreements or the Bank Agreements, but
the failure to do so shall not create a cause of action against the party
failing to give such notice or create any claim or right on behalf of any third
party. Alliance and Bank shall, upon request of the other party, provide copies
of all such modifications or amendments and copies of all other documentation
relevant to the Collateral hereunder. All modifications or amendments of this
Agreement must be in writing and duly executed by an authorized officer of each
Lender to be binding and enforceable.
3.6 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of each
of the parties hereto, but does not otherwise create, and shall not be construed
as creating, any rights enforceable by any person not a party to this Agreement
(including, without limitation, Borrower).
3.7 Governing Law. This Agreement shall be governed as to
validity, interpretation, enforcement and effect by the laws of the State of
Illinois.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxx
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Title: Vice President
ALLIANCE LAUNDRY SYSTEMS LLC
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President and
Chief Financial Officer
The undersigned acknowledges and agrees to the foregoing terms
and provisions. By executing this Agreement, the undersigned agrees to be bound
by the provisions hereof as they relate to the relative rights of Bank and
Alliance as between such Lenders; provided, however, that nothing in this
Agreement shall amend, modify, change or supersede the respective terms of the
Bank Agreements or the Alliance Agreements (or any other document to which the
undersigned may be a party) as between either such Lender and the undersigned,
and in the event of any conflict or inconsistency between the terms of this
Agreement and the Bank Agreements or the Alliance Agreements (or any such other
documents as the case may be), as between the undersigned and the applicable
Lender, the terms of the Bank Agreements and the Alliance Agreements (and such
other documents) shall govern. The undersigned further agrees that the terms of
this Agreement shall not give the undersigned any substantive rights vis-a-vis
either Bank or Alliance.
SPINCYCLE, INC.
By: /s/ Xxx Xxxx
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Title: Vice President
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EXHIBIT A
All of Borrower's Equipment located at and Leaseholds in the following business
locations of Borrower:
Store No. Address
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000 Xxxxx Xxxxxx xxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX
000 00xx xxx Xxxx Xxxxxxx, Xxxxxxxxxxxx, XX
115 0000 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX
114 0000 X. Xxxx Xxxxxx, Xxxxxxxxxxx, XX
501 0000 Xxxx 00xx Xxxxxx & Xxxx 00xx Xxxxxx, Xxxxxxx, XX
000 00xx xxx 00xx Xxxxxx, Xxxxx, XX
000 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, XX
505 0000 XX 000xx Xxxxxx, Xxxxx Xxxxx, XX
506 0000 X. Xxxxxxxxxx xxx Xxxxx, Xx. Xxxxxxxxxx, XX
507 0000 XX 0xx Xxxxxx, Xxxxx, XX
511 0000 Xxxxx Xxx, Xxxxx, XX
512 0000 Xxxxxxxx, Xxxxx Xxxxxxxx, XX
523 0000 Xxxxxxxx Xxxxx, Xxxxxxx, XX
525 0000 X. Xxxxxxx Xxxx Xxxx., Xxxxxxxxxx, XX
324 000 X. 00xx Xxxxxx, Xxxxxx, XX
