EXHIBIT 10.3
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BORROWER NAME AND ADDRESS SUBORDINATING CREDITOR LENDER NAME AND ADDRESS
CORVU NORTH AMERICA, INC. NAME AND ADDRESS COMMERCE BANK
0000 X. 00xx XXXXXX, XXXXX CORPORATION CENTENNIAL XXXXX XXXXXX
XXXXX 000 0000 X. 00xx XXXXXX, 0000 XXXXXXXXXXX XXX,
XXXXX, XX 00000 XXXXX 000 XXXXX 000
XXXXX, XX 00000 XXXXX, XX 00000
DATE: 12-02-2004
[_] If checked, refer to the attached addendum incorporated herein, for
additional parties and their signatures.
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DEBT SUBORDINATION AGREEMENT
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SUBORDINATED DEBT. Check one.
[_] The Subordinated Debt is all current and future debts, liabilities
and obligations that Borrower owes to Subordinating Creditor,
whether direct or indirect, absolute or contingent, secured or
unsecured, due or to become due, or created or acquired by
assignment or otherwise, with all interest, fees and other amounts
Borrower owes under the applicable loan or credit agreement or
instrument.
[_] The Subordinated Debt will not include the following:
[_] The Subordinated Debt is the following specifically described debt:
SENIOR DEBT. The Senior Debt is all current and future debts, liabilities and
obligations that Borrower owes to Lender, whether direct or indirect, absolute
or contingent, secured or unsecured, due or to become due, or created or
acquired by assignment or otherwise, and post-petition bankruptcy. Borrower
currently owes the following debts, liabilities and obligations to Lender:
Borrower has requested that Lender provide Borrower with additional
indebtedness, described as follows:
SUBORDINATION. Until the Senior Debt is fully paid, Borrower will not pay the
Subordinated Debt or transfer or encumber the property securing the Subordinated
Debt (check one)
[_] Subordinating Creditor will not receive or enforce (by set-off or
other means) any payments on the Subordinated Debt until the Senior
Debt is fully paid, except accrued interest on the Subordinated Debt
when Borrower is not in default under any agreement with Lender.
[_] except as follows:
Subordinating Creditor waives the right to receive or enforce any security for
the Subordinated Debt. Subordinating Creditor will be subrogated to Lender's
right to receive payments on the Senior Debt to the extent Lender receives
payments on the Subordinated Debt. Subordinating Creditor may exercise this
right of subrogation only after the Senior Debt is fully paid.
[_] ADDITIONAL TERMS.
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SIGNATURES. By signing, Borrower, Subordinating Creditor and Lender agree to the
terms contained in this Agreement. Borrower and Subordinating Creditor have
signed this Agreement for the purposes stated after a complete reading and
acknowledge receipt of a copy of this Agreement.
BORROWER: SUBORDINATING CREDITOR: LENDER:
/S/ XXXXX X. XXXXXXX
----------------------- -------------------------- ---------------------
XXXXX X. XXXXXXX, CFO CORVU CORPORATION COMMERCE BANK
CENTENNIAL LAKES OFFICE
----------------------- /S/ XXXXX X. XXXXXXX /S/ XXXXX XXXXXXXX
XXXXX X. XXXXXXX XXXXX XXXXXXXX,
VICE PRESIDENT
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CONSIDERATION. Lender is willing to provide Borrower with the requested credit
only if Subordinating Creditor will subordinate the Subordinated Debt to the
Senior Debt. Subordinating Creditor will benefit from Lender extending credit to
Borrower. Subordinating Creditor acknowledges that each future extension of
credit by Lender to Borrower will be made in reliance on this Agreement.
SECURITY INTEREST. To secure the payment and performance of the Senior Debt,
Subordinating Creditor transfers and assigns to Lander all of Subordinating
Creditor's right, title and interest in and to, and grants Lender a security
interest in each instrument representing the Subordinated Debt and in any real
or personal property securing the Subordinated Debt. To fully perfect this
security interest, Subordinating Creditor .will deliver to Lender each
instrument, endorsed to Lender, a properly executed financing statement and any
other instrument Lender considers necessary to attach and perfect Lender's
security interest. For purposes of this section and any related agreements,
Lander is a creditor and Subordinating Creditor is a debtor as defined under the
Uniform Commercial Code. Lender may exercise Lender's rights under this section
without first proceeding against Borrower or Subordinating Creditor.
WARRANTY. Subordinating Creditor and Borrower warrant to Lender that the
Subordinated Debt is or will be at time of acquisition, represented by an
instrument and held by Subordinating Creditor free and clear of any other
transfers, assignments, liens, encumbrances or subordinations. Subordinating
Creditor and Borrower warrant to Lander that each has the power end authority to
enter into this Agreement. If Subordinating Creditor is not an individual,
Subordinating Creditor warrants that its board of directors or its board's loan
committee (or other governing group) approved this Agreement, that the minutes
or a written resolution reflect this approval and that Subordinating Creditor
will maintain this Agreement and the minutes or resolution as a part of its
official record.
AGREEMENTS. Subordinating Creditor will not transfer, assign, encumber or
subordinate the Subordinated Debt, other than under this Agreement, without
Lender's prior written consent. Subordinating Creditor will not convert any or
all of the Subordinated Debt to capital stock or other securities of Borrower.
Subordinating Creditor will not forgive,. discharge or cancel the Subordinated
Debt. Subordinating Creditor and Borrower will not modify the Subordinated Debt
or any related agreement without Lander's prior written consent. Subordinating
Creditor will not begin or join with any other creditors to put Borrower into
bankruptcy, reorganization or other insolvency proceeding. Subordinating
Creditor's books and records will indicate that payments for the Subordinated
Debt are subordinate to Lender's Senior Debt. Subordinating Creditor and
Borrower will not take or permit any action that is inconsistent with this
Agreement.
Borrower and Subordinating Creditor agree that this Agreement is solely for
Lender's protection. This Agreement does not impose any additional duties on
Lender concerning Borrower's or Subordinating Creditor's property, except Lender
will exercise reasonable care in the custody and preservation of this property
when it's in Lender's possession.
INFORMATION. Subordinating Creditor will provide Lender with any information
Lender requests from time to time concerning the Subordinated Debt or otherwise
related to this Agreement. After Lender gives Subordinating Creditor prior
notice, Subordinating Creditor and Borrower will allow Lender to inspect their
records concerning the Subordinated Debt and to place the legend on any
instruments as this Agreement requires.
CROSS-DEFAULT. A default under this Agreement constitutes a default under each
agreement Borrower has with Lender.
SPECIFIC PERFORMANCE. Lander may demand specific performance of this Agreement.
Subordinating Creditor irrevocably waives any defense that may be asserted to
bar Lender's remedy to specific performance, such as the adequacy of a remedy at
law. . ,
OTHER REMEDIES. If Subordinating Creditor receives any payment, other than is
provided in this Agreement, or enforces the Subordinated Debt or its security,
then Subordinating Creditor will hold any payment, security or proceeds in trust
for Lender, Subordinating Creditor will then promptly turn over to Lender any
payment, security or its proceeds in the form received and properly endorsed to
Lender. Lander may apply the payment, security or proceeds as Lender considers
appropriate to any debts, liabilities and obligations that Borrower owes Lender.
This Agreement is unaffected by Lender's waiver, forbearance or amendment of any
of Borrower's debts, liabilities and obligations to Lender.
BORROWER INSOLVENCY. At Lender's request, Subordinating Creditor will do the
following when Borrower becomes subject to bankruptcy, insolvency proceedings,
or marshaling of assets and liabilities.
A. Subordinating Creditor will collect and receive for Lender's account, the
Subordinated Debt and any other payments or distributions concerning the
Subordinated Debt.
B. Subordinating Creditor will file appropriate claims or proofs of claim for
the Subordinated Debt.
C. Subordinating Creditor will execute end deliver to Lender any powers of
attorney, assignments or other instruments necessary for Lender's
enforcement of any claims for the Subordinated Debt.
Lender may also take these same actions on its own behalf and any other action
as Lender considers appropriate for enforcing Lander's rights, including voting
the Subordinated Debt, and will apply any payment or distribution received to
the Senior Debt.
ATTORNEYS' FEES. The prevailing party will be entitled to receive from the
losing party the prevailing party's reasonable costs and expenses incurred in
any proceeding concerning this Agreement, including court costs and attorneys'
fees.
WAIVER OF NOTICE. Borrower and Subordinating Creditor waive all notices from
Lender relative to this Agreement, including its acceptance, notice of
Borrower's default under any agreement with Lender, or of Lender's extension of
credit to Borrower or other notices.
SUCCESSORS. The duties and benefits of this Agreement will bind and benefit the
successors and assigns of Subordinating Creditor, Borrower and Lender,
TERM. After notifying Lender, Subordinating Creditor may end this Agreement for
any debts, liabilities and obligations Borrower owes to Lender arising under
future agreements. Otherwise, this Agreement will end only after Borrower has
fully paid and performed on all debts, liabilities and obligations owed to
Lender. For the purposes of this section, "future agreements" excludes any
debts, liabilities and obligations owed by Borrower to Lender that are created
under any commitments effective on this Agreement's date. Subordinating
Creditor's death, dissolution or bankruptcy will not terminate this Agreement.
AMENDMENT, INTEGRATION AND SEVERABILITY. This Agreement may not be amended or
modified by oral agreement. No amendment or modification of this Agreement is
effective unless made in writing and executed by Subordinating Creditor,
Borrower and Lender. This Agreement is the complete and final expression of the
agreement. If any provision of this Agreement is unenforceable, then the
unenforceable provision will be savored and the remaining provisions will still
be enforceable.
INTERPRETATION. Whenever used, the singular includes the plural and the plural
includes the singular, The section headings are for convenience only and are not
to be used to. interpret or define the terms of the Agreement.
WAIVER. By choosing any one or more remedies Lander does not give up Lender's
right to use any other remedy. Lender does not waive a default if Lander chooses
not to use a remedy. By electing not to use any remedy, Lender does not waive
Lender's right to later consider the event a default and to use any remedies if
the default continues or occurs again.
APPLICABLE LAW. This Agreement is governed by the laws of the jurisdiction where
Lander is located, the United States of America and to the extent required, by
the laws of the jurisdiction where the Property is located.
LEGEND. Subordinating Creditor of Borrower will provide the following legend,
properly completed, on each instrument representing the Subordinated Debt;
The rights of the holder hereof era subordinate, inferior and subject to the
rights of [Lender Name] (lender) under a Debt Subordination Agreement among
Lender, (Subordinating Creditor Names/! (Subordinating Creditors) and [Borrower
Name(s)] (Borrowers/, dated (Date of
Agreement)."
