1
EXHIBIT 4.6
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement"), executed effective as of
the 31st day of October, 2000, is made by MONTROSE INVESTMENTS LTD., a Cayman
Islands exempt company ("Subordinated Creditor"), and PROCOM TECHNOLOGY, INC., a
California corporation ("Debtor"), in favor of THE CIT GROUP/BUSINESS CREDIT,
INC., a New York state banking corporation, together with its successors and
assigns ("Lender").
W I T N E S S E T H:
WHEREAS, on October 10, 2000, Lender and Debtor entered into that certain
Loan and Security Agreement (including any and all presently existing and
hereafter entered into amendments, modifications and restatements thereof, the
"Loan Agreement") pursuant to which Lender agreed to make advances
(collectively, the "Loans") to Debtor in accordance with the terms thereof;
WHEREAS, a portion of the Loans are evidenced by that certain Bridge Loan
Promissory Note of even date with the Loan Agreement, in the stated principal
amount of $1,000,000.00, and that certain Term Loan Promissory Note of even date
with the Loan Agreement, in the stated principal amount of $4,000,000.00, each
bearing interest and being payable to the order of Lender as therein provided
(together with each renewal, extension, modification, rearrangement thereof and
replacement and substitution therefor, collectively, the "Notes");
WHEREAS, Debtor is indebted to Subordinated Creditor and/or may from time
to time become indebted to Subordinated Creditor for other or further
indebtedness, liabilities or obligations. All such indebtedness now owing, and
all other indebtedness, liabilities or obligations of Debtor to Subordinated
Creditor, now or hereafter existing (whether created directly or acquired by
assignment or otherwise; whether evidenced by a note, open account, application
for letter of credit, or otherwise; whether absolute or contingent; whether
joint, several or independent; whether arising by operation of law or
otherwise), including, without limitation, that certain loan from Subordinated
Creditor to Debtor evidenced by that one certain 6% Convertible Debenture, due
October 31, 2003, dated October 31, 2000 in the original principal amount of
FIFTEEN MILLION AND NO/100THS DOLLARS ($15,000,000) ("Subordinated Note") as
same may be renewed, consolidated, amended, extended, or otherwise modified plus
interest and premiums, if any, thereon and other amounts payable in respect
thereof are hereinafter referred to as the "Subordinated Debt" of Subordinated
Creditor; and
WHEREAS, it is a condition precedent to Lender's consent to the
incurrence of the Subordinated Debt by Debtor, and also to the making by Lender
of any further financial accommodation to Debtor that Subordinated Creditor and
Debtor shall have executed and delivered this Agreement to Lender.
NOW, THEREFORE, in consideration of the premises and in order to induce
Lender to consent to the Subordinated Debt, Subordinated Creditor and Debtor
hereby agree as follows:
SECTION 1. Agreement to Subordinate. Subordinated Creditor and Debtor
agree that the payment of the principal of, and interest on, and all other
amounts owing in respect of the Subordinated Debt is and shall be hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
to the prior payment in full of all indebtedness, liabilities and obligations of
Debtor under the Loan Agreement and the Notes or any other document or
instrument evidencing, securing, guaranteeing or in any way pertaining to the
Loans (collectively, the "Loan Documents"), and all other indebtedness owing
-1-
2
by Debtor to Lender under the Loan Documents howsoever evidenced (such documents
evidencing, securing, guaranteeing, or pertaining to such other indebtedness are
also included within the definition of the "Loan Documents"), whether now or
hereafter existing, whether for principal, interest (including without
limitation interest accruing after the commencement of any proceeding referred
to in Section 3), or whether fees, expenses or otherwise (all such obligations
being the "Senior Indebtedness").
SECTION 2(a) No Payment on the Subordinated Debt. Unless and until all
Senior Indebtedness has been paid in full and no commitment is in existence to
advance or create Senior Indebtedness:
(i) except as provided in 2(b), 2(c) and 2(d), no payment shall be
made by Debtor, directly or indirectly, in respect of the principal of,
or interest or premium on, or otherwise owing in respect of, the
Subordinated Debt, and
(ii) except as provided in 2(b), 2(c) and 2(d), Subordinated
Creditor shall not ask, demand, xxx for, take any action to enforce, take
or receive, directly or indirectly, in cash or other property (other than
Common Stock), by sale, set-off or in any other manner whatsoever any
moneys which may now or hereafter be owing with respect to the
Subordinated Debt.
Notwithstanding the foregoing, Subordinated Creditor may demand, xxx for,
take any action, or commence proceedings to enforce Debtor's obligations and
agreements in respect of the Subordinated Debt or under the Subordinated Note
and related documents that are non-monetary in nature so long as Subordinated
Creditor does not breach its agreements in Section 4, below and so long as
Subordinated Creditor first gives Lender 60 days prior written notice of such
intended action.
In the event that, notwithstanding the provisions of the preceding
paragraphs of this Section 2(a), and except as provided in 2(b), 2(c) and 2(d)
below, Debtor shall make any payment on account of the principal of, or interest
on, or amounts otherwise owing in respect of, the Subordinated Debt while Senior
Indebtedness has not been paid in full or while a commitment is in existence to
advance or create any Senior Indebtedness, such payment shall be segregated from
other funds and property of Subordinated Creditor and held by the Subordinated
Creditor, in trust for the benefit of, and shall forthwith be paid over and
delivered to, Lender or the holder of Senior Indebtedness (with any necessary
endorsement) for application pro rata to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness or held
as collateral in the case of non cash property for the payment of the Senior
Indebtedness.
(b) Interest on Subordinated Debt Prior to Default. Notwithstanding
anything to the contrary contained in 2(a), so long as there shall exist no
Event of Default as defined in any of the Loan Documents, Debtor may from time
to time pay or cause to be paid, and Subordinated Creditor may receive and
retain for its own account, regularly scheduled payments of accrued interest
plus liquidated damages not to exceed $75,000 per month as may be due under the
Registration Rights Agreement or the Securities Purchase Agreement entered into
by Debtor and the Subordinated Creditor on October 31, 2000 or on the
Subordinated Note (any amounts or liquidated damages that exceed $75,000 to be
paid in accordance with Subsection 2(c) below). Debtor and Subordinated Creditor
will not change the schedule of payments as to principal or interest or the
terms of such other payments without Lender's prior written consent. Each of
Debtor and Subordinated Creditor shall maintain records with respect to such
payments and upon the happening of any Event of Default, Debtor shall have no
right to make, and Subordinated Creditor shall cease to have the right to
receive and retain, such payments in cash; and any
-2-
3
payments in cash received by Subordinated Creditor shall be held in trust for
the benefit of Senior Creditor in accordance with this Agreement.
(c) Payments on Subordinated Debt in Common Stock or Addition to
Principal Amount Due under the Subordinated Note. Whether or not there shall
exist any Event of Default as defined in any of the Loan Documents, Debtor may
make, and Subordinated Creditor may receive and retain for its own account,
payments of principal, accrued interest, penalties, liquidated damages,
premiums, or any other amounts owing under the Subordinated Note, the Securities
Purchase Agreement and the Registration Rights Agreement entered into as of the
date hereof between Debtor and the purchasers signatory thereto, either in the
form of Common Stock (as such term is defined in the Securities Purchase
Agreement dated as of October 31, 2000 with respect to the Subordinated Note) or
by adding the amount of any such payments to the principal amount due under the
Subordinated Note (but not in cash), pursuant to Section 2 of the Registration
Rights Agreement entered into as of the date hereof between Debtor and the
purchasers signatory thereto and Section 4.1 of the Securities Purchase
Agreement.
(d) Payments of Principal. Notwithstanding anything to the contrary
contained in 2.A so long as there shall exist no Event of Default as defined in
any of the Loan Documents, Debtor may make, and Subordinated Creditor may
receive and retain for its own account, regularly scheduled payments of
principal due under the Subordinated Note, provided, that before and after such
payment to Subordinated Creditor, there shall be no less than $1,500,000 of
Availability as defined in the Loan Agreement. Accelerated payments shall not be
permitted under this Subsection (d) or otherwise.
SECTION 3. In Furtherance of Subordination.
(a) Upon any distribution of all or any of the assets of Debtor (other
than assets constituting Common Stock) (whether in connection with the
dissolution, winding up, liquidation, arrangement, reorganization, adjustment,
protection, relief or composition of Debtor or its debts or whether in any
bankruptcy, insolvency, rearrangement, reorganization, receivership, relief or
similar proceedings or whether upon an assignment for the benefit of creditors
or otherwise) the following provisions shall apply:
(i) Lender or the holder of all Senior Indebtedness shall first be
entitled to receive payment in full of the principal thereof, premium, if
any, and interest (including post-petition interest) due thereon before
Subordinated Creditor or the holder of the Subordinated Debt is entitled
to receive any payment on account of the principal of or interest on or
any other amount owing in respect of the Subordinated Debt;
(ii) any payment, dividend or distribution of assets of Debtor of
any kind or character, whether in cash, property or securities to which
Subordinated Creditor or the holder of the Subordinated Debt would be
entitled except for the provisions of this Agreement, shall be paid by
the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or other trustee or agent, directly to Lender or the holder of
Senior Indebtedness, to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid;
(iii) in any such proceeding, Lender or the holder of the Senior
Indebtedness is hereby irrevocably authorized and empowered (in the name
of Subordinated Creditor or otherwise), but shall have no obligation, to
demand, xxx for, collect and receive every payment or distribution
-3-
4
referred to in clauses (i) and (ii) of subsection (a) above and given
acquittance therefor and to file claims and proofs of claim and take such
other action (including, without limitation, voting the Subordinated Debt
or enforcing any security interest or other lien securing payment of the
Subordinated Debt) as it may deem necessary or advisable for the exercise
or enforcement of any of the rights or interests of Lender or the holder
of Senior Indebtedness hereunder;
(iv) in any proceeding, Subordinated Creditor shall duly and
promptly take such action to the extent, and only to the extent as Lender
may expressly request:
(A) to collect the Subordinated Debt for the account of
Lender or the holder of Senior Indebtedness and to file
appropriate claims or proofs of claim in respect of the
Subordinated Debt;
(B) to execute and deliver to Lender such powers of
attorney, assignments, or other instruments as it may request in
order to enable it to enforce any and all claims with respect to,
and any security interests and other liens securing payment of,
the Subordinated Debt; and
(C) to collect and receive any and all payments or
distributions which may be payable or deliverable upon or with
respect to the Subordinated Debt; and
(v) in any such proceeding, Subordinated Creditor shall not have
any right to setoff against the Subordinated Debt any indebtedness owed
by Subordinated Creditor to Debtor (including, without limitation, any
right of setoff under Section 553 of the Bankruptcy Code), and
Subordinated Creditor hereby irrevocably agrees, to the fullest extent
permitted by law, that it will not exercise (and herein waives) any right
of setoff.
If the foregoing waivers are adjudicated unenforceable by a court of
competent jurisdiction, then Subordinated Creditor agrees that, in the event
that it exercises any right of setoff in any such proceeding, Subordinated
Creditor will pay directly to Lender or the holder of the Senior Indebtedness
remaining unpaid or unprovided for, an amount equal to the amount of
Subordinated Debt which was so setoff, for application to such Senior
Indebtedness until all such Senior Indebtedness shall have been paid in full;
(b) in the event that, notwithstanding the foregoing provisions of this
Section 3, any payment or distribution of assets of Debtor of any kind or
character, whether in cash, property or securities, shall be received by
Subordinated Creditor on account of principal or interest on Subordinated Debt
before all Senior Indebtedness is paid in full, or effective provision shall
have been made for its payment, such payment or distribution shall be received
and held in trust for and shall be paid over to Lender or the holder of the
Senior Indebtedness remaining unpaid or unprovided for, for application to the
payment of such Senior Indebtedness until all such Senior Indebtedness shall
have been paid in full; and
(c) Lender or the holder of the Senior Indebtedness is hereby authorized
to demand specific performance of this Agreement, whether or not Debtor shall
have complied with any of the provisions hereof applicable to it, at any time
when Subordinated Creditor shall have failed to comply with any of the
provisions of this Agreement applicable to it. Subordinated Creditor hereby
irrevocably waives any defense based on the adequacy of a remedy at law, which
might be asserted as a bar to such remedy of specific performance.
-4-
5
SECTION 4. Subordination of all Liens. Subordinated Creditor agrees that
it will not hold any lien or security interest in any real or personal property
as security for the Subordinated Debt unless Lender has given its prior written
consent to the creation thereof in Lender's sole discretion. In the event
Subordinated Creditor shall acquire any lien or security interest as security
for the Subordinated Debt, regardless of whether such lien or security interest
is permitted or prohibited by this Agreement or the Loan Documents, Subordinated
Creditor will hold such lien or security interest for the benefit of Lender and
shall enforce such lien or security interest in accordance with the written
instructions of Lender. Any cash or other property received on account of any
lien or security interest securing the Subordinated Debt shall be delivered to
Lender and, in the case of cash, applied to, or, in the case of other property,
held as collateral for, the Senior Indebtedness. To the extent that any
Subordinated Debt is now or hereafter secured by a lien or security interest (a
"Subordinate Lien") against any real or personal property that is also subject
to a lien or security interest securing the Senior Indebtedness (a "Senior
Lien"), Subordinated Creditor agrees that such Subordinate Lien shall be second,
junior and subordinate to such Senior Lien and such Senior Lien shall be first
and prior to such Subordinate Lien. It is further agreed that the priorities
specified in the preceding sentence are applicable irrespective of the time or
order of attachment or perfection of liens and security interests, or the time
or order of filing of liens and security interests, or the time or order of
filing of financing statements, or the giving or failure to give notice of the
acquisition or expected acquisition of purchase money or other security
interests.
SECTION 5. No Commencement of Any Proceeding. Subordinated Creditor
agrees that, so long as any of the Senior Indebtedness shall remain unpaid, it
will not commence, or join with any creditor other than Lender or the holder of
Senior Indebtedness in commencing, any proceeding for any distribution of all or
any of the assets of Debtor (other than assets constituting Common Stock)
(whether in connection with the dissolution, winding up, liquidation,
arrangement, reorganization, adjustment, protection, relief or composition of
Debtor or its debts or whether in any bankruptcy, insolvency, rearrangement,
reorganization, receivership, relief or similar proceedings or whether upon an
assignment for the benefit of creditors or otherwise).
SECTION 6. Rights of Subrogation. Subordinated Creditor agrees that no
payment or distribution to Lender or the holder of Senior Indebtedness pursuant
to the provisions of this Agreement shall entitle Subordinated Creditor to
exercise any rights of subrogation in respect thereof until the Senior
Indebtedness shall have been paid in full.
SECTION 7. Subordination Legend; Further Assurances. Subordinated
Creditor and Debtor will cause each instrument evidencing Subordinated Debt to
be endorsed with the following legend:
"The indebtedness evidenced by this instrument is subordinated to
the prior payment in full of the Senior Indebtedness (as defined in the
Subordination Agreement hereinafter referred to) pursuant to, and to the
extent provided in, the Subordination Agreement effective as of October
31, 2000, by the maker hereof and payee named herein in favor of Lender
or the holder of Senior Indebtedness referred to in such Subordination
Agreement."
Subordinated Creditor and Debtor each will further xxxx its books of
account in such a manner as shall be effective to give proper notice of the
effect of this Agreement and will, in the case of any Subordinated Debt which is
not evidenced by any instrument, upon Lender's reasonable request, cause such
Subordinated Debt to be evidenced by an appropriate instrument or instruments
endorsed with the
-5-
6
above legend. Subordinated Creditor and Debtor each will, at its expense and at
any time and from time to time, promptly execute and deliver all further
instruments and documents, and take all further actions, that may be necessary
or desirable, or that Lender may reasonably request, in order to protect any
right or interest granted or purported to be granted hereby or to enable Lender
to exercise and enforce its rights and remedies hereunder.
SECTION 8. No Change in or Disposition of Subordinated Debt. Subordinated
Creditor shall not: (a) cancel or otherwise discharge any of the Subordinated
Debt, except by the issuance of Common Stock as permitted under the Subordinated
Debenture, or subordinate any of the Subordinated Debt to any indebtedness of
Debtor other than the Senior Indebtedness, except as provided otherwise in
Section 2 above; or (b) permit the terms of any of the Subordinated Debt to be
changed in such a manner as to have an adverse effect upon the rights or
interests of the Lender under this Agreement or the Loan Documents.
SECTION 9. Agreement by the Debtor. Debtor agrees that it will not make
any payment of any of the Subordinated Debt, nor take any other action, in
contravention of the provisions of this Agreement. Nothing contained in this
Agreement is intended to or shall impair, as between Debtor, on the one hand,
and its creditors other than the holders of the Senior Indebtedness and the
Subordinated Debt, on the other hand, the obligations of Debtor to pay the
holders of the Subordinated Debt all amounts owing on the Subordinated Debt as
and when the same shall become due and payable in accordance with its terms, or
to affect the relative rights of the holders of Subordinated Debt, on the one
hand, and creditors of the Debtor other than holders of the Senior Indebtedness,
on the other hand.
SECTION 10. Senior Indebtedness Hereunder Not Affected. All rights and
interests of Lender or the holder of Senior Indebtedness hereunder, and all
agreements and obligations of Subordinated Creditor and Debtor under this
Agreement, shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of all or any portion of this
Agreement;
(b) any change in the amount of interest rate accruing on, time, manner
or place of payment of, or in any other term of, all or any of the Senior
Indebtedness, or any other amendment or waiver of any consent to departure from
any of the Loan Documents, including, without limitation, changes in the terms
of disbursement of the Loan proceeds or repayment thereof, modifications,
extensions or renewals of payment dates, changes in interest rate or the
advancement of additional funds by the Lender in its discretion;
(c) any exchange, release or non-perfection of any collateral or any
release or amendment or waiver of or consent to departure from any guaranty, for
all or any of the Senior Indebtedness; or
(d) any other circumstance in respect of this Agreement which might
otherwise constitute a defense available to, or a discharge of, Debtor or any
guarantor of or in respect of the Senior Indebtedness or the Subordinated
Creditor.
SECTION 11. Reinstatement. This Agreement shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of any of the
Senior Indebtedness is rescinded or must otherwise be returned by Lender upon
the insolvency, bankruptcy or reorganization of Debtor or otherwise, all as
though such payment had not been made.
-6-
7
SECTION 12. Waivers. Subordinated Creditor hereby waives promptness,
diligence, notice of acceptance, notice of intention to accelerate, notice of
acceleration and any other notice with respect to any of the Senior Indebtedness
and this Agreement and any requirement that Lender protect, secure, perfect or
insure any security interest or lien or any property subject thereto, marshal
any assets or exhaust any right or take any action against Debtor or any other
person or entity or any collateral. Subordinated Creditor waives any right or
benefit of any notice of any action, event or circumstance relating to the
Senior Indebtedness, including but not limited to the incurrence, modification,
default, exercise of remedies, compromise or release of or with respect to
Senior Indebtedness.
SECTION 13. Representations and Warranties.
(a) Debtor hereby represents and warrants as follows: (i) the
Subordinated Debt now outstanding (true and complete copies of any instruments
evidencing which having been furnished to the Lender) has been duly authorized
by Debtor, has not been amended or otherwise modified and constitutes the legal,
valid and binding obligation of Debtor enforceable against Debtor in accordance
with its terms; (ii) there exists no default in respect of any such Subordinated
Debt; (iii) Debtor is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation as set forth on
the first page hereof; and Debtor has all requisite corporate power and
authority to execute, deliver and perform this Agreement; and (iv) The
execution, delivery and performance by Debtor of this Agreement have been duly
authorized by all necessary corporate action and do not and will not contravene
its articles, charter or bylaws; and
(b) Subordinated Creditor hereby represents and warrants as follows: (i)
Subordinated Creditor owns the Subordinated Debt now outstanding free and clear
of any lien, security interest, charge or encumbrance or any rights of others;
(ii) the execution, delivery and performance by Subordinated Creditor of this
Agreement do not and will not contravene any law or governmental regulation or
any contractual restriction binding on or affecting Subordinated Creditor or any
of its properties, and do not and will not result in or require the creation of
any lien, security interest or other charge or encumbrance upon or with respect
to any of its properties; (iii) this Agreement is a legal, valid and binding
obligation of Subordinated Creditor, enforceable against Subordinated Creditor
in accordance with its terms except as limited by bankruptcy, insolvency or
other laws of general application relating to the enforcement of creditors'
rights and by general equitable principles; and (iv) there exists no default in
respect of any Subordinated Debt.
SECTION 14. Amendments, Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by Subordinated Creditor or Debtor
therefrom shall in any event be effective unless the same shall be in writing
and signed by Lender, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 15. Expenses. Subordinated Creditor and Debtor jointly and
severally agree to pay, upon demand, to Lender the amount of any and all
reasonable expenses, including the reasonable fees and expenses of its counsel,
which Lender or any other holders of Senior Indebtedness may incur in connection
with the exercise or enforcement of any of the rights or interests of the
holders of Senior Indebtedness hereunder.
SECTION 16. Addresses for Notices. All communications from any party to
any other shall be in writing (including telegraphic and telecopy
communication). Communications to any party shall be delivered to another party
by certified or registered mail, return receipt requested, or sent by private
-7-
8
overnight courier or telegraphed, or telecopied, addressed to it at the address
of such party specified next to its signature in this Agreement. Any party may
designate a different address for receipt of communications by written notice to
the other parties. All communications shall be effective when received and if
receipt is refused, either three (3) business days after deposit in the mail or
the date of attempted delivery as confirmed by private courier service,
telegraph company or telecopy operator.
SECTION 17. No Waiver, Remedies. No failure on the part of Lender to
exercise, and no delay in exercising any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 18. Continuing Agreement; Transfer of Notes. All warranties,
representations and covenants made by Subordinated Creditor or Debtor herein or
in any certificate or other instrument delivered by it or on its behalf shall be
considered to have been relied upon by Lender and shall survive execution and
delivery of the Loan Documents regardless of any investigation by or on behalf
of any thereof. This Agreement is a continuing agreement and shall: (i) remain
in full force and effect until the Senior Indebtedness shall have been paid in
full; (ii) be binding upon Subordinated Creditor, Debtor and their respective
permitted successors and assigns and any subsequent holder of Subordinated Debt;
and (iii) inure to the benefit of and be enforceable by Lender and its
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), Lender may assign or otherwise transfer the Notes or any
other evidence of any Senior Indebtedness held by it to any other person or
entity, and such other person or entity shall thereupon become vested with all
the rights in respect thereof granted to such Lender herein or otherwise.
SECTION 19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA.
SECTION 20. Counterparts and Facsimile Signatures. This Agreement may be
separately executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to constitute one and the same Agreement. Any party to this Agreement may
indicate its intention to be bound by this Agreement by affixing its signature
to the signature page hereof and the delivery of the signature page hereof to
the other party or its representatives by Facsimile transmission or telecopy.
The delivery of a party's signature on the signature page hereof by facsimile
transmission or telecopy shall have the same force and effect as if such party
signed and delivered this Agreement in person.
SECTION 21. Section Headings. Headings are for convenience only and shall
be given no substantive meaning or significance in construing this Agreement.
SECTION 22. THIS AGREEMENT EMBODIES THE ENTIRE AGREEMENT AND
UNDERSTANDING BY AND AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDES ALL PRIOR AGREEMENTS, CONSENTS AND UNDERSTANDINGS RELATING TO
SUCH SUBJECT MATTER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
-8-
9
IN WITNESS WHEREOF, Debtor and Subordinated Creditor have caused this
Agreement to be duly executed and delivered by their officers thereunto duly
authorized as of the date first above written.
SUBORDINATED CREDITOR:
MONTROSE INVESTMENTS LTD.
By:
-------------------------------------
Name:
Title:
Address for Notices:
c/o HBK Investments, L.P.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn.:
LENDER:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
-------------------------------------
Name:
Title:
Address for Notices:
000 X. Xxxxx Xxx., 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Regional Credit Manager
Fax No.: (000) 000-0000
-9-
10
DEBTOR:
PROCOM TECHNOLOGY, INC.
By:
-------------------------------------
Name:
Title:
Address for Notices:
00 Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxx, General Counsel
Fax No.: (000) 000-0000
-10-
