EX-10.7 24 dex107.htm SUBORDINATION AND INTERCREDITOR AGREEMENT SUBORDINATION AND INTERCREDITOR AGREEMENT
EXHIBIT 10.7
SUBORDINATION AND INTERCREDITOR AGREEMENT
AGREEMENT (this “Agreement”), made and entered into this 20th day of June, 2008, by and between COMVEST CAPITAL, LLC, a Delaware limited liability company (“ComVest”), and MANUFACTURERS AND TRADERS TRUST COMPANY, as Administrative Agent (“MTB”);
“Code” means the United States Bankruptcy Code as in effect from time to time.
“Collateral” means all assets and property of the Borrower and its Subsidiaries, whether now owned or hereafter acquired, in each case to the extent securing any of the ComVest Obligations and/or MTB Obligations
“ComVest Documents” means the collective reference to the Loan Agreement, the promissory notes issued thereunder, and all security agreements, collateral assignments, guarantees and other agreements and instruments executed and delivered pursuant thereto or in respect thereof, in each case as amended, modified, supplemented and/or restated from time to time.
“ComVest Event of Default” means the occurrence or existence of any event or circumstance such as would permit the acceleration of the ComVest Obligations.
“ComVest Liens” means the liens and security interests held by ComVest from time to time to the extent securing all or any portion of the ComVest Obligations.
“ComVest Obligations” means all obligations outstanding from time to time under or pursuant to the ComVest Documents.
“ComVest Priority Collateral” means all Collateral other than the MTB Priority Collateral.
“MTB Documents” means the collective reference to the Restructuring Agreement and all promissory notes, security agreements, collateral assignments, guarantees and other agreements and instruments evidencing any currently outstanding indebtedness of the Borrower or any of its Subsidiaries to MTB, in each case as amended, modified, supplemented and/or restated from time to time.
“MTB Liens” means the liens and security interests held by MTB from time to time in the Collateral, in each case to the extent securing any of the MTB Obligations.
“MTB Obligations” means all obligations outstanding from time to time under or pursuant to (a) the MTB Documents (“MTB Debt Obligations”), and (b) the warrants, warrant agreements and any other agreements which do not evidence currently outstanding indebtedness of the Borrower and/or any of its Subsidiaries to MTB or any of its affiliates.
“MTB Priority Collateral” means the Pre-Closing Accounts, the Tax Refunds and the Certificate of Deposit, as each of such terms is defined in the Restructure Agreement as in effect on the date hereof.
“Permitted Payments” shall have the meaning set forth in Section 2(b) below.
“Subsidiary” shall have the meaning ascribed thereto in the Loan Agreement.
2. Subordination of MTB Obligations.
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(a) Subject to Section 2(b) below, MTB will not ask, demand, accelerate, xxx for, enforce, take, collect or receive, by set-off, Collateral enforcement or in any other manner (other than by action against MTB Priority Collateral, subject to the express requirements of this Agreement), any payment on or in respect of the MTB Obligations (whether of principal, interest, fees, collection costs or otherwise) (i) from the Borrower, or any successor or assign of the Borrower, including, without limitation, a receiver, trustee or debtor-in-possession (the term “Borrower” hereinafter shall include any such successor and assign of the Borrower), or (ii) from any other person (other than Xxxxxxx Xxxxxx and/or Xxxxxxxxxxx Xxxxxxxx pursuant to any personal guaranty), firm, partnership or corporation for the benefit of the Borrower, unless and until (A) all of the ComVest Obligations (exclusive of contingent indemnification obligations to the extent that no claim giving rise thereto has been asserted) shall have been fully paid and satisfied and all lending commitments of ComVest to the Borrower shall have terminated.
(b) Notwithstanding the provisions of Section 2(a) above, (i) the Borrower may pay to MTB, and MTB may collect, enforce, take, receive (by set-off or in any other manor) and accept from the Borrower, in payment or reduction of the MTB Debt Obligations (but not any of the other MTB Obligations), any and all proceeds of MTB Priority Collateral at any time from time to time, and (ii) so long as no ComVest Event of Default has occurred and is continuing or would exist immediately after such payment, the Borrower may pay to MTB, and MTB may accept from the Borrower, scheduled payments of principal and interest in respect of the Deferred Obligations (as such term is defined in the Restructure Agreement) in accordance with the Restructure Agreement as in effect on the date hereof.
(c) By its signature below, the Borrower hereby agrees that it will not make any payment in respect of the MTB Obligations which is prohibited by the terms of this Section 2. Furthermore, neither MTB nor any of its affiliates shall at any time assert that any of the Collateral secures any obligations owed to MTB or any of its affiliates other than the MTB Debt Obligations
(a) Notwithstanding anything to the contrary contained in any agreements between the Borrower and ComVest and/or between the Borrower and MTB, and notwithstanding the time, order or method of attachment or perfection as between the MTB Liens and the ComVest Liens, or the time or order of filing or recording of financing statements or other evidences of liens or security interests, (i) ComVest acknowledges and agrees that all MTB Liens in respect of the MTB Priority Collateral shall have absolute and unconditional priority over any and all ComVest Liens on the MTB Priority Collateral, to the full extent of all MTB Debt Obligations from time to time, and (ii) MTB acknowledges and agrees that all ComVest Liens shall have absolute and unconditional priority over any and all MTB Liens, to the full extent of all ComVest Obligations from time to time (provided that the principal amount of the ComVest Obligations to such priority shall at no time exceed $14,000,000).
(b) The parties acknowledge that certain account debtors in respect of the MTB Priority Collateral will also be account debtors in respect of the ComVest Priority Collateral, and that it is in the best interests of both ComVest and MTB that the Borrower’s and its Subsidiaries’
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relationships with its account debtors be maintained in good order. Accordingly, with respect to the Borrower’s and its Subsidiaries’ accounts receivable, (i) except to the extent otherwise directed by the subject account debtor or as provided in the following clause (ii), or to the extent otherwise ascertainable through reasonable diligence, all payments received on such accounts receivable shall be applied on a first-in, first-out basis (i.e., payments shall be applied to the oldest receivables outstanding at any time), (ii) in the event of any bulk settlement or compromise with any account debtor (whether in the context of a Code proceeding or otherwise) which includes both MTB Priority Collateral and ComVest Priority Collateral, all payments received in respect of such account debtor shall, unless otherwise indicated by the express terms of such settlement or compromise, be allocated ratably among the affected accounts receivable, (iii) neither MTB nor ComVest shall place any undue pressure on any of such account debtors, nor shall MTB or ComVest direct the Borrower or any Subsidiary to place any undue pressure on any account debtor, to cause payments on MTB Priority Collateral to be made in precedence to payments on ComVest Priority Collateral, or vice versa, and (iv) any collection actions taken by either MTB or ComVest in respect of account debtors on Collateral shall be made in compliance with applicable law.
(c) In no event and under no circumstances shall (i) ComVest be under any obligation to marshal any assets for the benefit of MTB, or to account to MTB in respect of collection efforts or collection results with respect to ComVest Priority Collateral except to the extent required by applicable law, or (ii) MTB have any claim against ComVest or any of its agents by reason of any settlements, compromises or other actions taken with respect to ComVest Priority Collateral at any time, except to the extent of any breach by ComVest of its obligations under this Agreement.
(a) Until the ComVest Obligations have been paid in full and all lending commitments of ComVest to the Borrower have been terminated, MTB shall not, without the prior written consent of ComVest, seek to foreclose or exercise any other enforcement remedies (including, without limitation, settlement or compromise of accounts receivable) with respect to any MTB Liens (other than in respect of the MTB Priority Collateral, subject to the express requirements of this Agreement), or institute any legal proceedings with respect to any Collateral (other than MTB Priority Collateral, subject to the express requirements of this Agreement), or take any other action, directly or indirectly, that would interfere in any manner with the rights of the holder of the ComVest Liens. Following payment in full of the ComVest Obligations and the termination of all lending commitments from ComVest to the Borrower, MTB may effect foreclosure and exercise of its enforcement remedies with respect to the MTB Liens.
(b) If, as and when so requested by ComVest, MTB shall (i) immediately release or otherwise terminate the MTB Liens on items of Collateral (other than MTB Priority Collateral) in connection with and/or to facilitate the sale, realization upon or other disposition of such Collateral by ComVest, or by Borrower with the prior written consent of ComVest, in each case with respect to that Collateral (other than MTB Priority Collateral) which is being sold, realized upon or otherwise disposed of (A) in the ordinary course of business, (B) prior to the declaration of a ComVest Event of Default if ComVest in good faith believes that such sale,
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realization or disposition would realize fair value for the subject Collateral, or (C) at any time on or after the declaration of a ComVest Event of Default, and (ii) immediately deliver such other release documents as ComVest may reasonably require in connection therewith; provided, however, that notwithstanding any such release or termination of the MTB Liens, or any liquidation or disposition of Collateral as aforesaid, the MTB Liens shall nonetheless attach to the proceeds of such Collateral in the same priority as existed prior to such action.
(c) Until payment in full of the MTB Debt Obligations, ComVest shall not, without the prior written consent of MTB, seek to foreclose or exercise any other enforcement remedies with respect to any of the MTB Priority Collateral, or institute any legal proceedings with respect to any MTB Priority Collateral, or take any other action, directly or indirectly, that would interfere in any manner with the rights of the holder of the MTB Liens in respect of the MTB Priority Collateral.
5. Priority; Grant of Authority.
(a) In the event of any distribution, division or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the assets of the Borrower or any of its Subsidiaries or the proceeds thereof to the creditors of the Borrower or any of its Subsidiaries, or readjustment of the obligations and indebtedness of the Borrower or any of its Subsidiaries, whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding involving the readjustment of all or any part of the MTB Obligations, or the application of the assets of the Borrower to the payment or liquidation thereof, or upon the dissolution, liquidation, cessation or other winding up of the Borrower’s or any Subsidiary’s business, or upon the sale of all or substantially all of the Borrower’s or any Subsidiary’s assets, then, and in any such event (a “Subject Event”), (i) the holders of ComVest Obligations shall, except to the extent of identifiable proceeds of MTB Priority Collateral, be entitled to receive payment in full of any and all of the ComVest Obligations (subject to the limitations on principal amounts set forth in Section 3 above) prior to the payment of all or any part of the MTB Obligations, (ii) any payment or distribution of any kind or character, whether in cash, securities or other property, except to the extent of identifiable proceeds of MTB Priority Collateral, which shall be payable or deliverable upon or with respect to any or all of the MTB Obligations shall be paid or delivered directly to the holders of ComVest Obligations for application on any of the ComVest Obligations (subject to the limitations on principal amounts set forth in Section 3 above), due or not due, until such ComVest Obligations (exclusive of contingent indemnification obligations to the extent that no claim giving rise thereto has been asserted) shall have first been fully paid and satisfied, and (iii) any payment or distribution of any kind or character, whether in cash, securities or other property, to the extent of identifiable proceeds of MTB Priority Collateral, shall be paid or delivered directly to the holders of the MTB Debt Obligations, until all MTB Debt Obligations shall have first been fully paid and satisfied. Following payment in full of the ComVest Obligations, but subject to the rights of any other lienholders or creditors of the Borrower or the subject Subsidiary, ComVest will remit to MTB, to the extent of MTB’s interest therein, all remaining Collateral then in ComVest’s possession or under ComVest’s control and all dividends or other payments or distributions paid to and held by ComVest in excess of the ComVest Obligations (and, for the sole purpose of maintaining the perfection of the MTB Liens
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therein, ComVest shall act as MTB’s agent in holding possession of any certificated securities constituting part of the Collateral, all of which certificates in existence on the date hereof are being delivered by MTB to ComVest (as priority lienholder) concurrently herewith) .
(b) In no event and under no circumstances shall ComVest be entitled to receive or retain any distribution of any identifiable proceeds of any MTB Priority Collateral prior to the payment in full in cash of the MTB Debt Obligations.
(a) None of the stated terms of any of the MTB Documents, as presently in effect, may be altered, amended or otherwise modified, without the prior written consent of ComVest, in any manner such as would in any manner increase or otherwise alter the Borrower’s or any Subsidiary’s obligations thereunder in any manner adverse to the Borrower or any Subsidiary.
(b) MTB hereby agrees that all payments received by ComVest may be applied, reversed, and reapplied, in whole or in part, to any of the ComVest Obligations, without affecting the validity or enforceability of this Agreement, and assents to any extension or postponement of the time of payment of the ComVest Obligations or to any other indulgence with respect thereto, to any substitution, exchange or release of all or any Collateral and to the addition or release of any other party or person primarily or secondarily liable therefor.
(a) MTB acknowledges and agrees that the terms and provisions of this Agreement do not conflict with or violate any terms or provisions of any of MTB Documents or any other agreement, instrument, or document executed by the Borrower or any Subsidiary and, or in favor of, MTB or any of its affiliates, and that, to the extent the terms and provisions of this Agreement may be inconsistent with any of the MTB Documents or any other such other agreement, instrument, or document, the MTB Documents and such other agreements, instruments and documents shall be deemed to be superseded by this Agreement.
(b) This Agreement shall be irrevocable and shall remain in effect until the ComVest Obligations have been paid in full and the Loan Agreement and all other ComVest
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Documents have been terminated. This is a continuing agreement of subordination and ComVest may continue, at any time and without notice to MTB, to extend credit or other financial accommodations and loan monies to or for the benefit of the Borrower on the faith hereof, in such amounts and on such terms and conditions as ComVest and the Borrower may agree (subject to the limitation contained in Section 3(a) above).
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If to ComVest:
ComVest Capital, LLC
Xxx Xxxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopier: _________________
with a copy to:
Xxxxxxxxx Xxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
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If to MTB:
Xx. Xxxxx X. Xxxxx
Regional Manager - Pennsylvania Assets
Vice President
M&T Bank
PA 1 HM41
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier: (000) 000-0000
or to such other address as any party may designate for itself by notice. Notice shall be deemed to have been duly given when (a) delivered personally or otherwise actually received, (b) sent by overnight delivery service, (c) mailed by first class United States mail, postage prepaid, registered or certified, with return receipt requested, or (d) sent by facsimile with facsimile confirmation of receipt (with duplicate notice sent by United States mail as provided above).
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COMVEST CAPITAL, LLC | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: Xxxx X. Xxxxxxx Title: Managing Director |
MANUFACTURERS AND TRADERS TRUST COMPANY, as Administrative Agent | ||
By: | /s/ Xxxxx X. Xxxxx | |
Name: Xxxxx X. Xxxxx Title: Vice-President |
The undersigned Borrower and its Subsidiaries hereby agrees to comply with the terms and conditions of the foregoing Agreement.
CLEARPOINT BUSINESS RESOURCES, INC. | ||
By: | /s/ Xxxxxxx X. Xxxxxx | |
CLEARPOINT RESOURCES, INC. ASG, LLC (a Florida LLC) EMGATE SOLUTIONS GROUP, LLC CLEARPOINT WORKFORCE, LLC CLEARPOINT HR, LLC ALLIED CONTRACT SERVICES, LLC STAFFBRIDGE, INC. CLEARPOINT ADVANTAGE, LLC CLEARPOINT MANAGED SERVICES, LLC QUANTUM RESOURCE CORPORATION ASG, LLC (a Rhode Island LLC) XXXXXX VENTURES, INC. | ||
By: | /s/ Xxxxxxx X. Xxxxxx | |
Name: Xxxxxxx X. Xxxxxx Title: CEO |
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