INTERCREDITOR AND SUBORDINATION AGREEMENT
This INTERCREDITOR
AND SUBORDINATION AGREEMENT (this “Agreement”) is made effective as of August
13, 2008 by and among
TXP CORPORATION,
a Nevada
corporation (the “Borrower”), LANDRY
MARKS LP,
a Texas
limited partnership (“Landry Marks”), and
YA GLOBAL INVESTMENTS, L.P.,
(formerly known as Cornell Capital Partners, LP), a Cayman Islands exempted
limited partnership (“YA Global”), and
all
other parties as Creditors or participants who may now or hereinafter join
in
and consent to the terms and conditions of this Agreement and do thereby agree
to be bound by this Agreement in respect of the terms hereof.
RECITALS
X. Xxxxxx
Marks and the Borrower are parties to the Landry Marks Credit Documents (as
hereinafter defined).
B. YA
Global
and the Borrower are parties to the YA Global Credit Documents (as hereinafter
defined).
C. Notwithstanding
use of the terms “Landry Marks Collateral,” “Landry Marks Credit Agreement,”
“Landry Marks Credit Documents,” “Borrower” and “Creditor” used herein, it is
the intention of all parties to this Agreement that the determination as to
whether Landry Marks has purchased or financed the Factored Receivables will
be
made in accordance with the terms of the Factoring and Security Agreement and
Texas law.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereby agree as follows:
1. DEFINITIONS
When
used
in this Agreement, the following capitalized terms will have the meanings
hereinafter set forth:
“Accounts
Receivable”
shall
mean all accounts and other receivables, instruments or other forms of
obligations and rights to payment of the Borrower (herein collectively referred
to as “Accounts”), together with the proceeds thereof, all goods, and inventory
represented by such Accounts and all such goods, and inventory that may be
returned by the Borrower’s customers, and all proceeds of any insurance thereon,
and all guarantees, securities and liens which Borrower may hold for the payment
of any such Accounts including, without limitation, all rights of stoppage
in
transit, replevin and reclamation and as an unpaid vendor and/or lienor, all
of
which Borrower represents and warrants will be bona fide and existing
obligations of its respective customers, arising out of the sale of goods,
services or inventory by Borrower in the ordinary course of
business.
“Borrower”
shall
have the meaning set forth in the preamble to this Agreement.
“Collateral”
shall
mean, as the context requires, any assets of the Borrower pledged to one of
the
Creditors pursuant to the Credit Documents.
“Credit
Agreements”
refers
to, singularly or collectively, as the context requires, the YA Global Credit
Agreements and the Landry Marks Credit Agreements.
“Credit
Documents”
refers
to, singularly or collectively, as the context requires, the YA Global Credit
Documents and the Landry Marks Credit Documents.
“Credit
Facilities”
refers
collectively to (a) the loans evidenced by the YA Global Credit Documents and
(b) the purchase facility evidenced by the Landry Marks Credit
Documents.
“Creditors”
shall
mean Landry Marks and YA Global, as Creditors, their successors and assigns,
and
all other parties as Creditors under the respective Credit
Agreements.
“Default
or Event of Default”
shall
mean any event, condition, omission, or act, upon the occurrence of which a
Creditor has the right, under its respective Credit Documents, to exercise
rights and remedies provided therein, including commencement of an enforcement
action with respect to all or any portion of the Collateral securing such
Creditor’s Credit Facility.
“Distribution”
means,
with respect to any indebtedness, (a) any payment or distribution by any person
of cash, securities or other property, by set-off or otherwise, on account
of
such indebtedness or obligation, (b) any redemption, purchase or other
acquisition of such indebtedness or obligation by any person or (c) the granting
of any lien or security interest to or for the benefit of the holders of such
indebtedness or obligation in or upon any property of any person.
“Factored
Receivables”
shall
mean collectively, (i) those specific Accounts Receivable of the Borrower
that have been purchased by Landry Marks pursuant to, and in accordance with,
the Landry Marks Credit Documents, and (ii) to the extent that the Landry
Marks Credit Documents and/or the transactions contemplated therein are
interpreted as a loan as opposed to a true sale, then those specific Accounts
Receivable of the Borrower which were financed by Landry Marks pursuant to
the
Landry Marks Credit Documents.
“Landry
Marks”
shall
have the meaning set forth in the preamble to this Agreement.
“Landry
Marks Collateral”
refers
to all Accounts Receivable, including Factored Receivables.
“Landry
Marks Credit Agreement”
refers
to the agreement listed on Schedule 1
to this
Agreement, as such agreement may, from time to time, be amended, restated or
modified.
“Landry
Marks Credit Documents”
refers
collectively to the Landry Marks Credit Agreement and any and all other
documents which evidence or secure the obligations of the Borrower under the
Landry Marks Credit Agreement.
“Landry
Marks Debt”
means
all obligations, liabilities and indebtedness of every nature of Borrower from
time to time owed to Landry Marks under the Landry Marks Credit Documents,
including, without limitation, the principal amount of all debts, claims and
indebtedness, accrued and unpaid interest and all fees, costs and expenses,
whether primary, secondary, direct, contingent, fixed or otherwise, heretofore,
now and from time to time hereafter owing, due or payable, whether before or
after the filing of a Proceeding together with (a) any amendments,
modifications, renewals or extensions thereof to the extent not prohibited
by
the terms of this Agreement and (b) any interest accruing thereon, and fees
and
expenses incurred, after the commencement of a Proceeding, without regard to
whether or not such interest, fees and expenses are an allowed
claim.
“Lien”
means,
relative to any asset of the Borrower, any mortgage, deed of trust, lien
(statutory or otherwise), pledge, charge, security interest, assignment, deposit
arrangement, priority, title retention device, encumbrance, trust or other
preferential arrangement intended as security in respect of such asset given
by
the Borrower to any Creditor.
“Person”
shall
mean any individual, corporation, limited liability company, partnership, trust,
unincorporated association, business, or other legal entity, and any government
or any governmental agency or political subdivision thereof.
“Proceeding”
means
any voluntary or involuntary insolvency, bankruptcy, receivership,
custodianship, liquidation, dissolution, reorganization, assignment for the
benefit of creditors, appointment of a custodian, receiver, trustee or other
officer with similar powers or any other proceeding for the liquidation,
dissolution or other winding up of a person.
“Proceeds”
shall
have
the
meaning assigned to it under the Uniform Commercial Code in effect in the State
of Texas (the “Code”),
shall
also include “products” (as defined in the Code), and, in any event, shall
include, but not be limited to (a) any and all payments (in any form
whatsoever) made or due and payable to the owner of any of the Accounts
Receivable from time to time and (b) any and all other amounts from time to
time paid in connection with any of the Accounts Receivable.
“YA
Global”
shall
have the meaning set forth in the preamble to this Agreement.
“YA
Global Collateral”
means,
collectively, substantially all of the personal property of Borrower, and all
other Collateral that has been or will be pledged to YA Global pursuant to
the
YA Global Credit Documents and includes, without limitation, but subject to
the
terms of this Agreement, the Factored Receivables and other Accounts
Receivable.
“YA
Global Credit Agreements”
refers
collectively to the agreements identified on Schedule 2
of this
Agreement, as such agreements may, from time to time, be amended, restated
or
modified.
“YA
Global Credit Documents”
refers
collectively to the YA Global Credit Agreements and any and all other documents
which evidence or secure the obligations of the Borrower under the YA Global
Credit Agreements.
2. COLLATERAL
AND SUBORDINATION
(a) Collateral.
(i) YA
Global
agrees that upon purchase of a Factored Receivable by Landry Marks from the
Borrower in accordance with the terms of the Landry Marks Credit Documents,
then
YA Global agrees that such Factored Receivable shall be released from, and
shall
be transferred to Landry Marks free and clear of, YA Global’s Liens without
further release or other action by YA Global, Landry Marks, or the Borrower.
Notwithstanding the foregoing, if a court of final, nonappealable jurisdiction
determines that Landry Marks has financed, as opposed to purchased, the Factored
Receivables, then no such release will be deemed to have occurred and
notwithstanding the time, order, method, or manner of granting, or perfection
of
any security interest or lien, the time of filing or recording of any financing
statements, assignments, deeds of trust, mortgages, or any other documents,
instruments, or agreements under the UCC or any other applicable law and any
provision of the UCC or any other applicable law to the contrary, the Creditors
hereby agree:
X. Xxxxxx
Marks shall have a first priority security interest in and Lien upon all
Accounts Receivable, including all Factored Receivables; and
B. Subject
to the standstill set forth in Section 2(a)(ii)
and
Section 9
hereof,
YA Global shall have a second priority security interest in and Lien upon all
Factored Receivables and other Accounts Receivable.
YA
Global
and Landry Marks further agree that with respect to Collateral other than
Accounts Receivable:
A. YA
Global
shall have a first priority security interest in and Lien(s) upon all other
YA
Global Collateral; and
X. Xxxxxx
Marks shall not have, and shall not accept or acquire, a security interest
or
Lien in any assets of Borrower other than the Landry Marks
Collateral.
(ii) YA
Global.
YA
Global agrees that at all times to the extent YA Global has any Liens in and
to
any Accounts Receivable, such Liens shall remain subordinate to the Liens in
favor of Landry Marks. YA Global agrees that notwithstanding anything contained
in any YA Global Credit Documents to the contrary, until the final and
indefeasible payment of all indebtedness and other obligations owing from
Borrower to Landry Marks, YA Global shall not exercise any remedies or otherwise
take any actions related in any way to its subordinate liens in all Accounts
Receivable. YA Global agrees that it will not contest or challenge the
characterization of the acquisition of Factored Receivables from Borrower by
Landry Marks as a true sale transaction.
(iii) Landry
Marks.
Landry
Marks acknowledges and agrees that it will only purchase from Borrower Accounts
Receivable in connection with its Credit Documents and to the extent such Credit
Documents are interpreted as a loan as opposed to a true sale, that to secure
the obligations of Borrower under its Credit Documents it will only claim a
first priority Lien against and security interest in the Factored Receivables
and all other Accounts Receivable. Landry Marks agrees that notwithstanding
anything contained in any Landry Marks Credit Documents to the contrary, until
the final and indefeasible payment of all indebtedness and other obligations
owing from Borrower to YA Global, Landry Marks shall not exercise any remedies
or otherwise take any actions related in any way against any assets of the
Borrower except for the Landry Marks Collateral.
(iv) Reserved.
(v) Accounts
Receivable.
Notwithstanding the Liens and security interest in favor of YA Global, each
of
Borrower, Landry Marks and YA Global acknowledge and agree that so long as
no
Default or Event of Default then exists under the Landry Marks Credit Documents,
and all reserve accounts (described in the Landry Marks Credit Documents) are
fully funded and following application thereof to payments on delinquent
Factored Receivables, each in accordance with the Landry Marks Credit Documents,
Landry Marks shall, deliver the remaining purchase price not applied or credited
as set forth above or in the Landry Marks Credit Documents to be paid for any
Factored Receivables purchased by Landry Marks pursuant to the Landry Marks
Credit Documents as directed in that certain direction letter from Borrower
to
Landry Marks attached hereto as Exhibit “B”
(the
“Direction
Letter”).
In
addition, Landry Marks agrees that any amounts actually paid to Borrower for
the
acquisition of Accounts Receivable as described in Section
2.1.4
of the
Landry Marks Credit Agreement in excess of the $1,250,000 described in the
Direction Letter shall be advanced to Borrower’s account specified on
Exhibit
“A”
attached
hereto, unless otherwise specified in writing to Landry Marks by Borrower and
YA
Global. Borrower and YA Global acknowledge and agree that Landry Marks shall
be
entitled to and may retain all Proceeds of all Accounts Receivable for
application to the Landry Marks Debt pursuant to the Landry Marks Credit
Documents. Upon full and final payment, in good and collected funds, of the
Landry Marks Debt, and any obligation or right of Landry Marks to purchase
further Accounts Receivable under the Landry Marks Credit Documents has been
terminated, Landry Marks agrees to re-assign any Accounts Receivables to the
Borrower, and remit any remaining Proceeds received by Landry Marks related
thereto to the Borrower’s account specified on Exhibit
“A”
attached
hereto. Each of Borrower and YA Global acknowledge and agree that,
notwithstanding the Direction Letter, in accordance with the Landry Marks Credit
Documents, Landry Marks has no obligation or commitment to finance or otherwise
purchase any Accounts Receivable from Borrower, and any such purchase shall
be
subject, in all respects, to approval by Landry Marks in its sole discretion;
provided, however, that if and when Landry Marks actually finances or otherwise
purchases any Account Receivable from Borrower in accordance with the Landry
Marks Credit Documents, the related purchase price (following application in
accordance with the Landry Marks Credit documents, including, without
limitation, application to credit reserve accounts or pay for delinquent
Accounts Receivable or otherwise) to be delivered to the Borrower shall, if
applicable, be delivered in accordance with Borrower’s directions set forth in
the Direction Letter.
(b) Option
to Purchase.
Following the occurrence of any Event of Default under the Landry Marks Credit
Documents and/or the YA Global Credit Documents, YA Global shall have the right
(but not the obligation), in its sole discretion, to purchase all, but not
less
than all, of Landry Marks’ right, title and interest in and to the Landry Marks
Debt and the Landry Marks Credit Documents, and Landry Marks agrees that in
such
circumstances it shall sell to YA Global all of its right, title and interest
in
and to the Landry Marks Debt and the Landry Marks Credit Documents, for cash
consideration in an amount equal to the outstanding principal amount of the
Landry Marks Debt plus accrued and unpaid interest thereon, including, without
limitation, all interest at the default rate as provided in the Landry Marks
Credit Documents, plus all other amounts due and owing under the Landry Marks
Credit Documents, including, without limitation, the payment all reasonable
fees
and expenses due thereon (collectively, the “Purchased
Interests”).
To
exercise such option, Landry Marks must receive irrevocable notice from YA
Global (the “Exercise
Notice”)
of its
intention to exercise the purchase option granted hereby. Notwithstanding
anything in this Section to the contrary or in conflict, Landry Marks shall
be
entitled to commence exercising its remedies with respect to any Default or
Event of Default at any time, irrespective of whether YA Global has delivered
the Exercise Notice. The parties agree that the closing of the acquisition
by YA
Global of the Purchased Interests pursuant to its rights in this Section
2(b)
shall be
consummated no later than ten (10) business days following delivery of the
Exercise Notice by the execution of customary assignment documents transferring
the Landry Marks Debt and Landry Marks Credit Documents and the security
interests and Liens securing the same, without recourse and without
representations and warranties from Landry Marks, except that Landry Marks
shall
represent and warrant: (i) that Landry Marks is the owner of the Landry
Marks Debt and the Landry Marks Credit Documents and Landry Marks free and
clear
of any Liens or other encumbrances; (ii) as to the amount owed under the
Landry Marks Credit Documents as of the date of the assignment; and
(iii) that the execution by Landry Marks of the assignment documents and
the performance by Landry Marks of its obligations thereunder are duly
authorized by all requisite corporate action.
(c) Control.
To the
extent that possession or control is necessary to perfect a security interest
in
YA Global Collateral which is in the possession of Landry Marks, Landry Marks
hereby agrees to act, and is hereby appointed, as the agent and bailee for
YA
Global solely for the purposes of perfecting YA Global’s security interest in
such YA Global Collateral. Additionally, to the extent that possession or
control is necessary to perfect a security interest in Landry Marks Collateral
which is in the possession of YA Global, YA Global hereby agrees to act, and
is
hereby appointed, as the agent and bailee for Landry Marks solely for the
purposes of perfecting Xxxxxx Mark’s security interest in such Landry Marks
Collateral. Nothing in this paragraph is intended to, nor shall be construed
to,
change the relative priorities and rights of the Creditors in the Collateral
as
set forth elsewhere in this Agreement.
3. COORDINATION
CONCERNING INTANGIBLE ASSETS AND RIGHTS
Each
of
the parties hereto acknowledges and agrees that one or more Creditors may have
a
Lien on, or other rights to use or to access, property of the Borrower
consisting of books and records, software rights (including, without limitation,
reservation systems) and other similar property (including management
agreements, sales and marketing agreements and developer’s or declarant’s
rights) which exist in connection with the various business operations of
Borrower generally and therefore are or could be associated with the Collateral
pledged and delivered to more than one Creditor (the “Servicing
Assets”).
Each
party hereto agrees to act in good faith and in a commercially reasonable manner
and to reasonably cooperate with the others in a utilization of such Servicing
Assets in order to facilitate reasonable access on the part of each other party
hereto to such Servicing Assets, as necessary to permit each party to realize
upon its Collateral, provided,
however,
that
nothing contained herein is intended, nor shall be construed, to require any
such Creditor to (i) incur out-of-pocket costs in connection with the same,
(ii)
take possession of, exercise rights with respect to, or to maintain, or store,
or take other similar actions with respect to, the Servicing Assets, or (iii)
delay, forbear, or standstill from exercising any of such Creditor’s rights and
remedies with respect to such portions of the Servicing Assets which are the
Creditor’s Collateral, including, without limitation, conducting secured party
sales of the same.
4. NOTICE
OF DEFAULT
Each
Creditor (the “Noticing
Creditor”)
agrees
to give each other Creditor prompt notice of any Default or Event of Default
under its respective Credit Agreement of which it is aware or of which it has
received notice from the Borrower. Such notice shall set forth in reasonable
detail the nature of the Default or Event of Default in question. Until such
Default or Event of Default is cured, such Creditor agrees, upon the request
of
any other Creditor, to periodically provide each other Creditor with information
regarding the status of the Default or Event of Default in question. Prior
to
the commencement of any enforcement action against the Borrower, including
any
action in bankruptcy and/or disposition, each Creditor agrees, to the extent
reasonably practicable, to give each other Creditor prior written notice of
the
nature of such enforcement action. Failure to give any such notice, however,
shall not impair or otherwise adversely affect the Borrower’s obligations under
the Credit Documents, to which the Noticing Creditor is a party, or the Noticing
Creditor’s rights and remedies under its Credit Documents, nor shall such
failure give rise to any liability on the part of the Noticing Creditor to
the
other Creditors.
5. CONSENT
TO CREDIT FACILITY
Each
Creditor hereby consents to the Borrower entering into or continuing its
relationship, as the case may be, under the other Creditors’ Credit Documents
and incurring indebtedness pursuant thereto and securing such indebtedness
with
a pledge of and grant of a Lien (i) with respect to Landry Marks, on the
Factored Receivables, and all other Accounts Receivable subject to the terms
hereof; and (ii) with respect to YA Global, on the YA Global Collateral,
subject to the terms hereof.
6. INCLUSION
OF CUSTODIANS AND OTHER AGENTS
For
purposes of this Agreement, any reference to a Creditor shall mean and include
any custodian or other agent of such Person who may, at any time, be in
possession of all or any portion of the Collateral for the benefit of such
Creditor.
7. RESERVED
8. RESERVED
9. EXERCISE
OF REMEDIES
Subject
only to any express provisions of this Agreement or the Credit Agreements that
require a Creditor to take or refrain from taking any action, each Creditor
may
exercise its discretion with respect to exercising or refraining from exercising
any of its rights and remedies or taking any enforcement action with respect
to
the Collateral which is specifically pledged under such Creditor’s respective
Credit Documents. YA Global agrees not to take any action against any Account
Receivable so long as the Landry Marks Debt is outstanding and this Agreement
remains in effect. Landry Marks agrees, except as expressly set forth herein,
not to take any action against the YA Global Collateral (other than all Accounts
Receivable) so long as the indebtedness owing from Borrower to YA Global
pursuant to the YA Global Credit Documents remains outstanding and this
Agreement remains in effect.
The
parties agree that YA Global may at its option take any action to accelerate
payment of all or any portion of the indebtedness owing by Borrower to YA Global
and to foreclose or realize upon or enforce any of the YA Global Collateral
(other than any Accounts Receivable) and to exercise any other rights YA Global
may have, without the prior consent of Landry Marks; provided, that YA Global
shall not take any action to foreclose or realize upon or to enforce any of
its
rights with respect to security interests and Liens granted by Borrower in
or on
any of the Landry Marks Collateral.
Additionally,
the parties agree that Landry Marks may at its option take any action to
accelerate payment of all or any portion of the Landry Marks Debt and to
foreclose or realize upon or enforce any of the Landry Marks Collateral and
to
exercise any other rights Landry Marks may have, without the prior consent
of YA
Global; provided, that Landry Marks may not take any action to foreclose or
realize upon or to enforce any of its rights with respect to security interests
and Liens granted by Borrower in or on the YA Global Collateral other than
Accounts Receivable.
10. INDEPENDENT
CREDIT INVESTIGATIONS
No
Creditor nor any of its respective directors, officers, agents or employees
shall be responsible to any other Creditor or to any other Person for the
Borrower’s solvency, credit worthiness, financial condition, or ability to repay
any of the debt or for the accuracy of any recitals, statements, representations
or warranties of the Borrower, oral or written, or for the validity,
sufficiency, enforceability, or perfection of the security interests in any
Collateral. Each Creditor has entered into its respective financing arrangements
with the Borrower based upon its own independent investigation, and makes no
warranty or representation to the other Creditors nor does it rely upon any
representation of the other Creditors with respect to matters identified or
referred to herein. No Creditor shall have any responsibility to any other
Creditor for monitoring or assuring compliance by the Borrower with any of
the
Borrower’s covenants or representations made to any Creditor. Without limiting
the generality of the foregoing, any Creditor may perform in accordance with
the
terms of its Credit Agreements (subject to this Agreement) without regard to
whether the Borrower’s performance in accordance with the terms thereof might or
would constitute or result in a breach of covenants or representations under
the
other Creditor’s Credit Documents, and under no circumstances shall any Creditor
be liable to the other for inducing a breach or a violation of any other
Creditor’s Credit Agreement by virtue of performing in accordance with the terms
of its own Credit Documents (subject to this Agreement).
11. AMENDMENTS,
MODIFICATIONS AND INCREASES OF CREDIT DOCUMENTS
Each
Creditor may enter into amendments, restatements, modifications, renewals or
extensions of its Credit Documents with the Borrower without the prior written
consent of the other Creditor, provided that, without the prior written consent
of YA Global: (i) at no time shall the Landry Marks Credit Facility exceed
an invoice face amount outstanding of Accounts Receivables of $1,500,000;
(ii) Landry Marks will not take or accept any additional Collateral other
than the Landry Marks Collateral; and (iii) Landry Marks shall not increase
the
discount rates or fees (except for rates or fees set forth in the Landry Marks
Credit Documents which may be imposed following a Default or Event of Default)
due under the Landry Marks Credit Facility and/or the Landry Marks Credit
Documents. Should any Creditor cease extending further credit to the Borrower,
this Agreement shall nevertheless continue in effect as to the outstanding
Liens
of each Creditor until this Agreement is terminated as set forth
herein.
12. AMENDMENTS
TO THIS AGREEMENT
No
amendment, modification, supplement, termination, consent, or waiver of or
to
any provision of this Agreement nor any consent to any departure therefrom
shall
be in any event effective unless it shall be in writing signed by or on behalf
of each of the Creditors; provided that, no amendment to this Agreement which
materially and adversely effects the Borrower shall be made unless also signed
by the Borrower. Any waiver of this provision or any consent to any departure
from the terms of this provision shall be effective only in the specific
instance and for the specific purpose for which given.
13. TERMINATION
This
Agreement is a continuing agreement and unless all Creditors then party hereto
have specifically consented in writing to its earlier termination, this
Agreement shall remain in full force and effect in all respects with respect
to
each Creditor until such time as the Credit Facilities of such Creditor are
repaid in full or otherwise satisfied, in which case this Agreement shall
terminate only with respect to such Creditor (except for the agreements of
such
Creditor under Sections
10,
15,
18,
21 22
and
24
hereof),
but this Agreement shall continue in full force and effect with respect to
all
other Creditors whose respective Credit Facilities have not been paid or
otherwise satisfied in full.
14. EFFECT
OF BANKRUPTCY
This
Agreement shall be and remain enforceable notwithstanding any bankruptcy or
insolvency proceeding by or against the Borrower.
15. GOVERNING
LAW
This
Agreement shall be governed by the laws of the State of Texas (without regard
to
its conflicts of law principles that would call for the application of the
laws
of another jurisdiction).
16. AUTHORITY;
SUCCESSORS AND ASSIGNS
Each
party hereby represents and warrants that it has the full power and authority
to
execute and deliver this Agreement, including, in the case of the Creditors,
any
required consents or approvals of its co-Creditors or participants under its
Credit Agreements. This Agreement shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto; provided, that no
Creditor (or any Creditor represented by any Creditor) shall assign or transfer
any rights or obligations under its Credit Documents to another Person unless
such Person shall have agreed in writing to be bound by the terms of this
Agreement as if it were a party hereto.
17. WAIVERS;
FAILURE OR DELAY
No
failure or delay on the part of any Creditor in the exercise of any power,
right, remedy, or privilege under this Agreement shall impair such power, right,
remedy or privilege or shall operate as a waiver thereof, nor shall any single
or partial exercise of any power, right or privilege preclude any other or
further exercise of any other power, right or privilege. The waiver of any
such
right, power, remedy or privilege with respect to particular facts and
circumstances shall not be deemed to be a waiver with respect to other facts
and
circumstances.
18. SEVERABILITY
OF PROVISIONS
Any
provision of this Agreement which is illegal, invalid, prohibited, or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such illegality, invalidity, prohibition or unenforceability
without invalidating or impairing the remaining provisions hereof or affecting
the validity or enforceability of any such provision in any other
jurisdiction.
19. COMPLETE
AGREEMENT
With
respect to the matters set forth herein, this Agreement is intended by the
parties as a final expression of their agreement and supersedes any other
agreements or negotiations, oral or written, and shall not be modified except
as
provided in Section 12 hereof.
20. ATTORNEYS’
FEES AND DISBURSEMENTS
In
the
event of any dispute concerning the meaning or interpretation of this Agreement,
or in the event of any litigation by a party to enforce the provisions hereof,
the prevailing party shall be entitled to recover from the non-prevailing party
its reasonable attorneys’ fees and disbursements and actual court costs incurred
including those for pretrial, trial and appellate proceedings.
21. VENUE
EACH
OF
THE CREDITORS AND THE BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE
OR FEDERAL COURT LOCATED WITHIN THE STATE OF TEXAS AND IRREVOCABLY AGREES THAT
ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL
BE
LITIGATED IN SUCH COURTS. THE CREDITORS AND THE BORROWER EXPRESSLY SUBMIT TO
AND
CONSENT TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF
FORUM NON-CONVENIENS, SUBJECT TO THE REQUIREMENTS THAT ANY ENFORCEMENT ACTION
WITH RESPECT TO THE COLLATERAL BE BROUGHT IN THE COURTS OF THE STATE IN WHICH
THE COLLATERAL IS LOCATED OR WHICH LAW APPLIES TO THE CREATION, PERFECTION
AND
ENFORCEMENT OF THE SECURITY INTEREST.
22. JURY
TRIAL WAIVER
ALL
OF
THE CREDITORS AND THE BORROWER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. THE CREDITORS AND THE BORROWER ACKNOWLEDGE THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH CREDITOR
HAS RELIED ON THIS WAIVER CONTAINED HEREIN IN ENTERING INTO THIS AGREEMENT
AND
THE OTHER CREDIT DOCUMENTS AND THAT EACH CREDITOR WILL CONTINUE TO RELY ON
THIS
WAIVER IN THEIR RELATED FUTURE DEALINGS. THE CREDITORS AND THE BORROWER WARRANT
AND REPRESENT THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER
WITH LEGAL COUNSEL AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL
RIGHTS.
23. CONFLICTS
To
the
extent that any of the provisions of this Agreement conflict with any provisions
of the Credit Documents, the provisions of this Agreement shall
control.
24. FURTHER
ASSURANCE
Each
Creditor shall cooperate fully with each other in order to carry out promptly
and fully the terms and provisions of this Agreement. Each party hereto shall
from time to time execute and deliver such other agreements, documents or
instruments and take such other actions as may be reasonably necessary to
effectuate the terms of this Agreement. The Creditors shall each be solely
responsible for all costs and expenses (including their respective attorneys’
fees and disbursements) incurred by them in connection with the execution and
delivery of this Agreement and otherwise incurred by them in entering into
the
transactions contemplated herein.
25. COUNTERPARTS
This
Agreement may be executed in any number of counterparts, and each counterpart
shall be deemed to be an original instrument, but all such counterparts together
shall constitute but one agreement.
26. NOTICES
Any
notice or other communication required or permitted to be given shall be in
writing addressed to the respective party as set forth below and may be
personally served, telecopied or sent by overnight courier or by registered
or
certified U.S. mail, return receipt requested, and shall be deemed
given
|
(a)
|
if
served in person, when served; or
|
|
(b)
|
if
telecopied, on the date of transmission if before 5:00 p.m. (Dallas
time)
on a business day or otherwise on the next business day, provided
that a
confirmation of a receipt of any such telecopy is obtained and retained
by
the sending party and that a hard copy of such notice is also sent
pursuant to (c) or (d) below or by first class U.S. mail;
or
|
|
(c)
|
if
by overnight courier, on the first business day after delivery to
the
courier; or
|
|
(d)
|
if
by certified or registered U.S. mail, return receipt requested, on
the
fourth day after deposit in the mail postage prepaid. For purposes
of this
Agreement the term “business day” shall mean a day on which banks are open
for business in Dallas. Any party listed below may change the address
to
which notices are to be sent hereunder by giving notice per and in
the
manner set forth herein (of such change of address to all of the
other
parties entitled to receive notice
hereunder).
|
|
If
to Landry Marks:
|
Landry
Marks Partners LP
|
|
0000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
|
|
|
Xxxxxx,
Xxxxx 00000
|
|
|
Telecopier
Number: (000) 000-0000
|
|
|
Attention:
Mr. Xxx Xxxxxx
|
|
|
With
copy to:
|
Xxxxxx
Xxxxx, LLP
|
|
0000
Xxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxxxxx,
Xxxxx 00000
|
|
|
Attention:
Xxxxxxx Xxxxxxx, Esq.
|
|
|
Telecopier
Number: (000) 000-0000
|
|
|
If
to YA Global:
|
YA
Global Investments, L.P.
|
|
c/o
Yorkville Advisors LLC
|
|
|
000
Xxxxxx Xxxxxx – Xxxxx 0000
|
|
|
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
|
|
|
Telecopier
Number: (000) 000-0000
|
|
|
Attention:
Xxxxx Xxxx, Esq.
|
|
|
With
a Copy to:
|
Xxxxxx
& Xxxxxxxxxx, LLP
|
|
Xxxxx
Xxxxxx Xxxxx
|
|
|
Xxxxxx,
Xxxxxxxxxxxxx 00000
|
|
|
Attn:
Xxxxxxx X. Xxxxxx, Esq.
|
|
|
Telecopier
No. (000) 000-0000
|
|
|
If
to the Borrower:
|
TXP
Corporation
|
|
0000
Xxxxxxxx Xxxxx
|
|
|
Xxxxxxxxxx,
Xxxxx 00000
|
|
|
Telecopier
Number: (000) 000-0000
|
|
|
Attention:
Xxxxx Xxxx, Chief Financial Officer
|
27. BORROWER’S
OBLIGATIONS ABSOLUTE
The
provisions of this Agreement set forth the relative rights and obligations
of
the Creditors with respect to the Collateral, and nothing contained in this
Agreement shall impair, as between the Borrower, on the one hand, and any
Creditor, on the other hand, the obligation of the Borrower to pay such Creditor
all amounts payable in respect of such Creditor’s Credit Facilities as and when
the same shall become due and payable in accordance with the terms of such
Creditor’s Credit Documents, or prevent any Creditor (except as expressly
otherwise provided in this Agreement) from exercising all rights, powers and
remedies otherwise permitted by its Credit Documents and by applicable law
upon
a Default or Event of Default under any of its Credit Documents.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREFORE,
the
parties hereby have executed or caused this Agreement to be executed on their
behalf by their duly authorized representatives as of the date first above
written.
|
TXP
CORPORATION,
|
|||
|
By:
|
/s/Xxxxxxx
X. Xxxxxx
|
||
|
Name:
Xxxxxxx X. Xxxxxx
|
|||
|
Title:
President and Chief Executive Officer
|
|||
|
CREDITORS:
|
|||
|
LANDRY
MARKS PARTNERS LP,
|
|||
|
By:
|
Landry
Marks GP LLC, a Texas limited liability company, its General
Partner
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | ||
|
Xxxxxxx
X. Xxxxx, Manager
|
|||
|
YA
GLOBAL INVESTMENTS, L.P.,
|
|||
|
By:
|
Yorkville
Advisors, LLC,
|
||
|
its
investment manager
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
Xxxx Xxxxx
|
|||
|
Title:
Senior Managing Director
|
|||
Schedule
1
Landry
Marks Credit Agreement
Factoring
and Security Agreement, dated as of August 13, 2008, among the Borrower and
Landry Marks, as modified from time to time
Schedule
2
YA
Global Credit Agreement
Securities
Purchase Agreement, dated
as
of May 29, 2008 by and between the Borrower and YA Global;
Senior
Secured Convertible Debentures dated as of May 29, 2008 in the original
principal amount of $5,725,000 issued by Borrower to YA Global;
Security
Agreement dated as of May 29, 2008 granted by Borrower in favor of YA Global,
as
modified from time to time;
Intellectual
Property Security Agreement dated as of May 29, 2008 granted by Borrower in
favor of YA Global, as modified from time to time;
Securities
Purchase Agreement, dated as of March 30, 2007 by and between the Borrower
and
YA Global;
Secured
Convertible Debentures dated as of March 30, 2007 in the original principal
amount of $5,000,000 issued by Borrower to YA Global;
Security
Agreement dated as of March 30, 2007 granted by Borrower in favor of YA Global,
as modified from time to time;
Securities
Purchase Agreement, dated as of June 5, 2006, by and between the Borrower and
YA
Global;
Secured
Convertible Debentures dated as of June 5, 2006 in the original principal amount
of $550,000 issued by Borrower to YA Global; and
Security
Agreement dated as of June 5, 2006 granted by Borrower in favor of YA Global,
as
modified from time to time.
