SUBORDINATION AGREEMENT
Exhibit 10.1
THIS SUBORDINATION AGREEMENT
dated as of SEPTEMBER 17,
2008 (as the same may be amended, modified or restated from time to time,
this "Agreement"),
is by and among (a) XXXXXX XXXXXXXXXX (“Subordinate
Lender”), (b) THERMO
CREDIT, LLC, a Colorado limited liability company (together with its
successors and assigns, “Senior Lender”),
and (c) UNITED ESYSTEMS,
INC., a Nevada corporation (“ESystems”),
NETCOM DATA SOUTHERN
CORP., a Georgia corporation (“Southern”),
NETCOM DATA CORP., a
Georgia corporation (“Netcom”)and
UNITED CHECK SERVICES,
L.L.C., a Louisiana limited liability company (“Check
Services” and together with ESystems, Southern and Netcom, jointly,
severally and in
solido, “Debtor”).
RECITALS
WHEREAS, ESystems is indebted
to Subordinate Lender for the Subordinate Indebtedness;
WHEREAS, Lender has agreed to
make a Loan or Loans to Debtor (the “Senior Loans”)
upon and subject to the terms, conditions and provisions therein set forth in
that LOAN, PLEDGE AND SECURITY
AGREEMENT dated as of even date herewith (as amended, renewed, extended,
restated, supplemented or otherwise modified from time to time, the "Senior
Loan Agreement"). Capitalized terms not otherwise
defined herein shall have the same meaning as in the Senior Loan Agreement as in
effect on the date hereof.
WHEREAS, in connection with
and as a requirement of the Senior Loan Agreement, Debtor agreed to
execute and to cause Subordinate Lender to execute this Agreement pursuant to
which, among other things, the Subordinate Indebtedness (as such term is defined
herein) is subordinated to the payment in full of the Senior
Indebtedness (as such term is defined herein) and Liens (as such term is defined
herein) securing the Subordinate Indebtedness (if any) are subordinated to all
Liens securing the Senior Indebtedness, all on the terms and conditions set
forth herein.
NOW, THEREFORE, in order to
induce Senior Lender to make the Senior Loans to Debtor pursuant to the Senior
Loan Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. As
used in this Agreement, the following terms shall have the respective meanings
indicated below:
"Collateral"
means any asset or property (whether real, personal or mixed) on or in which a
Lien has been granted or exists as collateral or security for the payment or
performance of any indebtedness, liability or obligation.
"Indefeasibly
Paid" means (a) with respect to the making of any payment on or in
respect of any Senior Indebtedness, that such payment of such Senior
Indebtedness has been paid in full in cash (or that such payment of such Senior
Indebtedness has been otherwise satisfied in a manner acceptable to the holders
of the Senior Indebtedness in their sole and absolute discretion), and (b) that
any and all commitments by Senior Lender to make any loan or advance or extend
any other credit that would, if made or extended, constitute Senior Indebtedness
have been irrevocably terminated.
"Lien"
means any security interest, lien, charge or encumbrance of any kind or
nature.
"Senior
Lender" means Senior Lender and any other present or future holder or
owner of any of the Senior Indebtedness.
"Senior
Documents" means the Loan Documents, and each other agreement, document
or instrument evidencing or governing any of the Senior
Indebtedness.
"Senior
Indebtedness" means (a) the principal amount of and interest (including
but not limited to post-petition interest) on all indebtedness, liabilities
and/or obligations of the Obligors, under a Senior Document, (b)
the
Indebtedness,
and (c) all renewals, extensions, amendments, or other modifications of any of
the foregoing, and any reasonable attorneys’ fees or other reasonable collection
costs incurred in connection with any of the foregoing.
“Subordinate
Indebtedness” means the principal amount of and interest on all
indebtedness, liabilities and/or obligations of every nature of Debtor to
Subordinate Lender, created directly or indirectly, acquired by assignment or in
the form of a participation or otherwise, absolute or contingent, joint or
several, liquidated or unliquidated, due or not due, contractual or tortious,
secured or unsecured, for such Subordinate Lender's own account or as agent for
others, whether now existing or hereafter arising or incurred, whether incurred
by Debtor as principal, maker, surety, endorser, guarantor or otherwise
(including but not limited to any indebtedness, liabilities and/or obligations
incurred after payment in full of any or all indebtedness, liabilities or
obligations existing on the date hereof) evidenced by any document, instrument
or agreement (the “Subordinate
Documents”) including, but not limited to (i) that certain NON-INTEREST BEARING PROMISSORY
NOTE in the face amount of FIVE HUNDRED THOUSAND AND NO/100
DOLLARS ($500,000.00) dated AUGUST 22, 2008, and (ii) that
certain SECURITY
AGREEMENT dated AUGUST
22, 2008 both executed by ESystems, together with all extensions,
renewals, increases or modifications thereof and any attorneys' fees related to
collection or other collection costs incurred in connection
therewith. The term "Subordinate
Indebtedness" shall include, without limitation, (a) the indebtedness
arising out of the Subordinate Documents, and (b) all renewals, extensions,
amendments, increases or other modifications of any of the
foregoing.
"Subordinate
Lender" means Subordinate Lender and any other present or future holder
or owner of any of the Subordinate Indebtedness.
The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms.
2. Subordination.
(a) Each
of the Obligors and Subordinate Lender hereby covenants and agrees that the
Subordinate Indebtedness, howsoever evidenced and whether now existing or
hereafter incurred, shall be subordinate and junior in right of payment, to the
extent and in the manner hereinafter set forth, to the prior payment in full of
all Senior Indebtedness.
(b) The
Subordinate Indebtedness shall not be payable, and no Obligor shall make any
payment (whether of principal, accrued interest or otherwise) or other
distribution of, on or with respect to any Subordinate Indebtedness, and
Subordinate Lender shall not receive, accept, retain or apply any such payment
or other distribution, unless and until (i) the Senior Indebtedness shall have
been Indefeasibly Paid, and (ii) Senior Lender shall have no further obligations
under the Senior Documents to make loans to Debtor. NOTWITHSTANDING THE FOREGOING, UNTIL
SENIOR LENDER HAS GIVEN DEBTOR AND SUBORDINATE WRITTEN NOTICE OF THE EXISTENCE
OF AN EVENT OF DEFAULT UNDER THE SENIOR LOAN DOCUMENTS, SUBORDINATE SHALL BE
ENTITLED TO RECEIVE AND RETAIN REGULARLY SCHEDULED PAYMENTS OF PRINCIPAL AND
INTEREST UNDER THE SUBORDINATE DOCUMENTS. UPON WRITTEN NOTICE FROM
SENIOR LENDER TO DEBTOR AND SUBORDINATE LENDER OF SUCH DEFAULT AND SO LONG AS
SUCH DEFAULT CONTINUES, WHETHER OR NOT SENIOR LENDER HAS ELECTED TO EXERCISE ANY
REMEDIES AGAINST DEBTOR, NO PAYMENTS SHALL BE MADE UNDER THE SUBORDINATE
DOCUMENTS AND SUBORDINATE LENDER SHALL NOT BE ENTITLED TO RECEIVE OR RETAIN ANY
PAYMENT FROM ANY SOURCE ON OR IN RESPECT OF THE SUBORDINATE
DOCUMENTS.
(c) Subordinate
Lender hereby agrees that (i) in the event any Obligor offers to
Subordinate Lender any payment (including any payment received as proceeds of
any Collateral for the Subordinate Indebtedness), or any other distribution of
any property, on account of any Subordinate Indebtedness which payment or other
distribution is not expressly permitted hereby (collectively, "Prohibited
Payments"), Subordinate Lender will direct that the full amount of the
Prohibited Payment be made or delivered directly to Senior Lender; (ii) any
Prohibited Payment or other payment or distribution received by Subordinate
Lender in violation of this Agreement from any source whatsoever will be
promptly delivered to Senior Lender in the form received (except for
endorsements or assignments by Subordinate Lender where appropriate or required
by Senior Lender) and until so delivered to Senior Lender will be held by
Subordinate Lender in
trust
as Senior Lender' property; and (iii) Senior Lender shall retain all moneys
collected or received pursuant to the exercise of the foregoing powers and shall
apply said moneys to the payment of Senior Indebtedness then outstanding
(whether matured or unmatured), provided that after satisfying all amounts
owing, or to be owed, to Senior Lender with respect to the matured and unmatured
Senior Indebtedness, including the payment of all related costs and expenses
incurred by Senior Lender, Senior Lender shall pay the excess, if any, to
Subordinate Lender on account of the Subordinate Indebtedness and subrogate its
rights, if any, in such excess to Subordinate Lender. Subordinate
Lender agrees that no payment or distribution to Senior Lender pursuant to the
provisions of this Agreement shall entitle Subordinate Lender to exercise any
rights of subrogation in respect thereof until the Senior Indebtedness shall
have been Indefeasibly Paid.
3. Bankruptcy
or Related Proceedings. Notwithstanding anything else
contained herein to the contrary, in the of 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 an Obligor (a
“Proceeding”):
(a) The
Senior Indebtedness shall have been Indefeasibly Paid, before Subordinate Lender
is entitled to receive any payment or other distribution on account of or with
respect to any Subordinate Indebtedness;
(b) Any
payment by, or any distribution of assets or properties of, any Obligor of any
kind or character, whether in cash, property or securities, to which Subordinate
Lender would be entitled except for the terms and provisions of this Agreement
shall be paid or delivered by the Person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to Senior Lender to the extent necessary to make the Senior
Indebtedness Indefeasibly Paid after giving effect to any concurrent
payment or distribution (or provision therefor satisfactory to Senior Lender) to
Senior Lender;
(c) In
the event that, notwithstanding the foregoing, any payment by, or distribution
of assets or properties of, any Obligor of any kind or character, whether in
cash, property or securities, shall be directly or indirectly received by
Subordinate Lender before all Senior Indebtedness shall be Indefeasibly Paid
(whether or not the Senior Indebtedness is then due or payable), such payment or
distribution will be promptly delivered to Senior Lender in the form received
(except for endorsements or assignments by Subordinate Lender where appropriate
or required by Senior Lender) for application to payment of the Senior
Indebtedness remaining unpaid after giving effect to any current payment or
distribution to Senior Lender and until so delivered to Senior Lender will be
held by Subordinate Lender in trust as Senior Lender's property;
(d) Subordinate
Lender agrees not to initiate, prosecute or participate in any claim, action or
other proceeding challenging the enforceability, validity, perfection or
priority of the Senior Indebtedness or any liens and security interests securing
the Senior Indebtedness;
(e) Subordinate
Lender agrees to execute, verify, deliver and file any proofs of claim in
respect of the Subordinate Indebtedness as requested by Lender in connection
with any Proceeding and hereby irrevocably authorizes, empowers and appoints
Lender its agent and attorney-in-fact to execute, verify, deliver and file such
proofs of claim upon the failure of Subordinate Lender promptly to do so prior
to FIFTEEN (15) days
before the expiration of the time to file any such proof of
claim. Subordinate Lender agrees to not vote such claim in any
such Proceeding in a manner reasonably determined by Senior Lender to be
detrimental to the financial interests of Senior Lender.
(f) The
Senior Indebtedness shall continue to be treated as Senior Indebtedness and the
provisions of this Agreement shall continue to govern the relative rights and
priorities of Senior Lender and Subordinate Lender even if all or part of the
Senior Indebtedness or the security interests securing the Senior Indebtedness
are subordinated, set aside, avoided, invalidated or disallowed in connection
with any such Proceeding, and this Agreement shall be reinstated if at any time
any payment of any of the Senior Indebtedness is rescinded or must otherwise be
returned by any holder of Senior Indebtedness or any representative of such
holder.
4. Limitation
on Actions Against Obligors. Subordinate Lender agrees that it
shall not, until all Senior Indebtedness has been Indefeasibly Paid, commence or
join in any action against any Obligor relating to the collection or enforcement
of the Subordinate Indebtedness (including any remedies with respect to
Collateral); including, but not limited to, the commencement or participation in
the commencement of a Proceeding.
5. Subordination
of Collateral. Each of the Obligors and Subordinate Lender
agrees that all Liens and whatever other right, title or interest (if any) any
of them may have at any time in or to any Collateral as security for the
Subordinate Indebtedness shall, at all times and in all respects, be subject,
junior and subordinate as to priority and in all other respects to all Liens and
any other right, title or interest of Senior Lender in or to any such Collateral
as security for Senior Indebtedness, irrespective of the time or order of the
creation or perfection of any such Lien, right, title or interest and
irrespective of any failure by Senior Lender to create or perfect any such Lien,
right, title or interest. Subordinate Lender agrees that it will not
foreclose or exercise any right or remedy it may have at any time in or with
respect to the Collateral until such time as the Senior Indebtedness have been
Indefeasibly Paid.
6. Restriction
on Transfer of Subordinate Indebtedness. Subordinate Lender
agrees not (a) to assign or transfer all or any part of the Subordinate
Indebtedness or any claim which such Subordinate Lender may have against any
Obligor except pursuant to an agreement which is expressly made subject to all
terms and provisions of this Agreement, or (b) to subordinate all or any
part of the Subordinate Indebtedness or any claim which such Subordinate Lender
may have against any Obligor except pursuant to this Agreement or any subsequent
agreement acceptable to Senior Lender.
7. Books and
Records. Each of the Obligors and Subordinate Lender agrees
to make proper notations in its respective books, records or other
statements which evidence or record any Subordinate Indebtedness ("Records")
indicating that the Subordinate Indebtedness is subject to the provisions of
this Agreement.
8. Future
Subordinate Indebtedness. Without the prior written consent of
Senior Lender, neither Obligor nor Subordinate Lender will incur or accept any
additional Subordinate Indebtedness or grant or incur any additional Lien as
security for the Subordinate.
9. Rights
Concerning Senior Indebtedness. Without affecting the rights
of Senior Lender hereunder, Subordinate Lender agrees that, with or without
notice to or further assent from Subordinate Lender, Senior Lender may at any
time, and from time to time, either prior to or after any default by any Obligor
with respect to any indebtedness, (a) advance or refuse to advance
additional credit and make other accommodations to or for the account of any
Obligor, (b) by written agreement or otherwise, extend, renew, or change,
modify, compromise, release, refuse to extend, renew or change the Senior
Indebtedness or any part thereof and waive any default under all or any part
thereof, and modify, rescind or waive any provision of any related agreement or
collateral undertaking, including, but not by way of limitation, any provision
relating to acceleration of maturity, (c) fail to set off any or all
accrued balances or deposit balances or any part thereof on Senior Lender' books
in favor of any Obligor and/or release the same, (d) sell, surrender,
release, exchange, resort to, realize upon or apply, or fail to do any of the
foregoing, with respect to any Collateral or any part thereof held by Senior
Lender or available to Senior Lender for the Senior Indebtedness, and
(e) generally deal with the Obligors in such manner as Senior Lender may
see fit, including, without limiting the generality of the foregoing, any
forbearance, failure, delay or refusal by Senior Lender to exercise any rights
or remedies Senior Lender may have against the Obligors, all without impairing
or affecting Senior Lender' rights and remedies under this
Agreement. No (i) failure by Senior Lender to file, record or
otherwise perfect any Lien, (ii) improper filing or recording, (iii) failure by
Senior Lender to insure or protect any Collateral, or (iv) other dealing (or
failure to deal) with any Collateral by Senior Lender, shall impair or release
the obligations of Subordinate Lender hereunder.
10. Representations
and Warranties. Subordinate Lender represents and warrants to
Senior Lender that the Subordinate Indebtedness has not heretofore been
assigned, transferred, pledged, subordinated or otherwise encumbered by
Subordinate Lender. Subordinate Lender hereby represents and
warrants that all requisite actions for the execution, delivery and
performance of this by Subordinate Lender and its general partner have been
taken. No other or further action by or on behalf of Subordinate
Lender or its general partner is necessary or appropriate to authorize the
execution, delivery and performance of this Agreement. This Agreement
constitutes a legal, valid and binding obligation of Subordinate
Lender, enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or similar
laws
of general application relating to the enforcement of creditors’ rights and
except to the extent specific remedies may generally be limited by equitable
principles.
11. Acceleration. In
the event of a breach by any Obligor or Subordinate Lender in the observance and
due fulfillment of any of the terms, conditions or provisions of this Agreement,
or in the event that any of the representations or warranties made by any
Obligor Subordinate Lender herein are untrue or inaccurate in any material
respect, Senior Lender may, with or without notice or demand, declare all Senior
Indebtedness to be due and payable, and thereupon the same shall become and
shall be immediately due and payable.
12. Severability. If
any term, condition or provision of this Agreement or any other agreement,
document or instrument executed in connection herewith or in connection with the
Senior Indebtedness or any Collateral therefor is determined to be invalid or
unenforceable under any law, such determination shall not affect the validity or
enforceability of any other term, condition or provision hereof or
thereof.
13. Waiver;
Rights. Senior Lender shall have no obligation to take any
action, and Subordinate Lender shall have the sole responsibility for taking any
and all actions, necessary or appropriate to preserve all rights and remedies of
Subordinate Lender against the Obligors and any and all other parties to any
Subordinate Document. No delay by Senior Lender in exercising any
right or remedy hereunder or under any Senior Document or in failing to exercise
the same shall operate as a waiver of any such right or remedy. No
notice to or demand on any Obligor or Subordinate Lender shall be deemed a
waiver of Senior Lender' right to take further action without notice or
demand. No modification, alteration or waiver of any of the
provisions hereof shall be effective unless in writing and signed by the parties
hereto and then shall only be effective in the specific instance for which given
without in any way impairing the rights and remedies of the parties hereto in
any other respect at any time.
14. Certain
Modifications.
Until the Senior Indebtedness has been Indefeasibly Paid, and
notwithstanding anything to the contrary contained in any Subordinate Document,
Subordinate Lender shall not, without the prior written consent of Senior
Lender, agree to any amendment, modification or supplement to the Subordinate
Documents; provided, however, that the
Subordinate Documents may be amended or modified to (a) extend the maturity date
or the date of payment of any amount due by Debtor or any other Obligor
thereunder, (b) decrease the rate of interest applicable to any of the
Subordinate Indebtedness, (c) waive any Obligor's noncompliance with any
term or provision thereof, or (d) amend the Subordinate Documents so long as
such amendment is not more onerous or restrictive on the Obligors than the
provisions contained in the Subordinate Documents on the date of this Agreement,
in each case without the prior written consent of Senior Lender.
15. Subrogation. Subject to the
indefeasible payment in full in cash of all Senior Indebtedness and the
termination of all lending commitments under the Senior Documents, Subordinate
Lender shall be subrogated to the rights of Senior Lender to receive
Distributions with respect to the Senior Debt. Subordinate Lender agrees that in
the event that all or any part of a payment made with respect to the Senior Debt
is recovered from the holders of the Senior Debt in a Proceeding or otherwise,
any distribution or payment received by Subordinate Lender with respect to the
Subordinate Indebtedness at any time after the date of the payment that is so
recovered, whether pursuant to the right of subrogation provided for in this
Agreement or otherwise, shall be deemed to have been received by Subordinate
Lender in trust as property of the holders of the Senior Indebtedness and
Subordinate Lender shall forthwith deliver the same to Senior Lender for
application to the Senior Indebtedness until the Senior Indebtedness is
Indefeasibly Paid. A distribution or payment made pursuant to this
Agreement to Senior Lender which otherwise would have been made to Subordinate
Lender is not, as between Debtor and Subordinate Lender, a payment by Debtor to
or on account of the Senior Indebtedness.
16. Waiver of
Certain Rights by Subordinate Creditor.
(a) Marshaling. Subordinate Lender hereby
waives any rights it may have under applicable law to assert the doctrine of
marshaling or to otherwise require Senior Lender to marshal any property
of any Obligor or for the benefit of Subordinate Lender.
(b) Rights
Relating to Senior Lender’s Actions With Respect to the Collateral. Subordinate Lender hereby
waives, to the extent permitted by applicable law, any rights which it may have
to enjoin or otherwise obtain a judicial or administrative order preventing
Senior Lender from taking, or refraining from taking, any action with respect to
all or any part of the Collateral. Without limitation of the
foregoing, Subordinate Lender hereby agrees (a) that it has no right to direct
or object to the manner in which Senior Lender applies the proceeds of the
Collateral resulting from the exercise by Senior Lender of rights and remedies
under the Senior Documents to the Senior Indebtedness, and (b) that Senior
Lender has not assumed any obligation to act as the agent for Subordinate Lender
with respect to the Collateral.
17. Applicable
Law, Venue and Jurisdiction. The parties hereto agree that
this Agreement shall be deemed to have been made in the State of Louisiana at
Senior Lender's address as set forth herein and shall be governed by, and
construed in accordance with, the laws of the State of Louisiana and
is performable in the Dallas, County indicated herein. In any
litigation in connection with or to enforce this Agreement, Subordinate Lender,
Obligors, and each of them, irrevocably consent to and confer personal
jurisdiction on the courts of the State of Louisiana or the United
States courts located within the State of Louisiana. Nothing
contained herein shall, however, prevent Senior Lender from bringing any action
or exercising any rights within any other state or jurisdiction or from
obtaining personal jurisdiction by any other means available under applicable
law.
18. Modification.
Any modification or waiver of any provision of this Agreement, or any consent to
any departure by any party from the terms hereof, shall not be effective in any
event unless the same is in writing and signed by Senior Lender and Subordinate
Lender, and then such modification, waiver or consent shall be effective only in
the specific instance and for the specific purpose given. Any notice to or
demand on any party hereto in any event not specifically required hereunder
shall not entitle the party receiving such notice or demand to any other or
further notice or demand in the same, similar or other circumstances unless
specifically required hereunder.
19. Further
Assurances. Each party to this Agreement promptly will execute and
deliver such further instruments and agreements and do such further acts and
things as may be reasonably requested in writing by any other party hereto that
may be necessary or desirable in order to effect fully the purposes of this
Agreement.
20. No
Representations or Warranties by Senior Lender. No
representations, warranties, covenants or agreements have been made by Senior
Lender to the other parties hereto except as expressly set forth herein and such
other parties hereto have not relied upon any representation, warranty, covenant
or agreement made by Senior Lender unless expressly set forth herein, including
without limiting the generality of the foregoing, any representation, warranty,
covenant or agreement by Senior Lender to provide or make any credit, advance or
loan to Debtor or to extend the time of payment of any such credit, advance or
loan or to grant any waiver or forbearance with respect thereto.
21. Binding
Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective legal representatives (as
to individuals who are parties hereto, but excluding legal counsel acting in
such capacity), successors and assigns. Each reference herein to any
Obligor, Subordinate Lender or Senior Lender shall be deemed to include its
permitted successors and assigns.
22. Expenses. Each
of the Obligors agrees to pay Senior Lender, on demand, all reasonable costs and
expenses of any kind, including counsel fees, which Senior Lender may incur in
enforcing any of its rights or remedies under this Agreement against such
Obligor. Subordinate Lender agrees to pay Senior Lender, on demand,
all reasonable costs and expenses of any kind, including counsel fees, which
Senior Lender may incur in enforcing any of its rights or remedies under this
Agreement against Subordinate Lender which arise as a result of a violation of
the terms of this Agreement by Subordinate Lender.
23. Actions
Required by the Obligors. Each of the Obligors agrees to
(a) do and perform any and all acts and things which may be required on its
part to enable Senior Lender and Subordinate Lender to perform their respective
obligations under this Agreement, and (b) refrain from doing any act or
thing which would cause or contribute to a violation by Subordinate Lender of
any of its obligations hereunder.
24. Additional
Waivers by the Obligors and Subordinate Lender. Each of the
Obligors and Subordinate Lender waives any and all notice of the receipt and
acceptance by Senior Lender of this Agreement or of the
creation,
renewal, extension or accrual of any of the Senior Indebtedness, present or
future, in whole or in part, by Senior Lender or of the reliance by Senior
Lender on this Agreement at any time and further waives notice of any default or
Event of Default with respect to the Senior Indebtedness. Each party
hereto waives its right to trial by jury in any litigation arising out of or
relating to this Agreement.
25. Continuing
Agreement; Termination of Agreement; Reinstatement. This
Agreement shall continue in full force and effect unless and until all Senior
Indebtedness shall be Indefeasibly Paid, and shall automatically terminate if
and when all Senior Indebtedness shall be Indefeasibly Paid. In
furtherance of the foregoing, this Agreement shall continue to be effective or
be automatically reinstated, as the case may be, if at any time payment of any
of the Senior Indebtedness, in whole or in part, is rescinded or must otherwise
be restored or refunded by a holder of the Senior Indebtedness as a preference,
fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar
law, all as though such payment had not been made.
26. Relative
Rights. This Agreement defines the relative rights of
Subordinate Lender and Senior Lender. Except as expressly provided in
this Agreement, nothing in this Agreement shall:
(a) impair,
as between the Obligors and Subordinate Lender, the obligations of the Obligors,
as provided in the Subordinate Documents, to pay principal of and interest on
any Subordinate Indebtedness in accordance with its terms; or
(b) affect
the relative rights of Subordinate Lender and creditors of the Obligors other
than their rights in relation to Senior Lender.
27. Notices.
All notices, requests, demands or other communications required or permitted to
be given pursuant to this Agreement shall be in writing and given by (a)
personal delivery, (b) expedited delivery service with proof of delivery, or (c)
United States mail, postage prepaid, registered or certified mail, return
receipt requested, sent to the intended addressee at the address set forth on
the signature pages below and shall be deemed to have been received either, in
the case of personal delivery, as of the time of personal delivery, in the case
of expedited delivery service, as of the time of the expedited delivery and in
the manner provided herein, or in the case of mail, upon the THIRD (3rd) day after deposit in a
depository receptacle under the care and custody of the United States Postal
Service. Either party shall have the right to change its address for
notice hereunder to any other location within the continental United States by
notice to the other party of such new address at least THIRTY (30) days prior to the
effective date of such new address. Senior Lender and Subordinate
Lender shall each provide to the other party a copy of any notice of an Event of
Default under the Senior Documents or Subordinate Documents, respectively,
contemporaneously with any notice to any Obligor; provided, however, that the
failure to provide any such notice shall not be a defense to the performance or
observance of Subordinate Lender’s obligations hereunder or to the Obligor's
obligations under the Loan Documents.
28. WAIVER OF
JURY TRIAL. SUBORDINATE LENDER,
OBLIGORS AND SENIOR LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. EACH OF SUBORDINATE LENDER, OBLIGORS AND SENIOR LENDER
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT
AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE
DEALINGS. EACH OF SUBORDINATE LENDER, OBLIGORS AND SENIOR LENDER
WARRANTS AND REPRESENTS 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.
NOTICE OF FINAL
AGREEMENT
THIS
WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES, AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, each of
the parties hereto has caused this Agreement to be duly executed by its duly
authorized officer as of the date written above.
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SENIOR
LENDER:
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ADDRESS:
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THERMO
CREDIT, LLC
|
000
Xxxxxx Xxx., Xxxxx 0000
|
|
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Xxx Xxxxxxx, XX 00000 | |
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By:
/s/ XXXX X.
XXXXXX, XX.
|
||
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Name:
Xxxx X. Xxxxxx, Xx.
|
||
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Title:
Executive Vice President
|
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DEBTOR:
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ADDRESS:
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00000
X’Xxxx Xxxx
|
||
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Xxxxxxxx,
XX 00000
|
||
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By:
/s/ XXXXXX XXXX
GREEN JR.
|
||
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Name:
Xxxxxx Xxxx Green Jr.
|
||
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Title:
Treasurer
|
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NETCOM
DATA SOUTHERN CORP.
|
||
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By:
/s/ XXXXXX XXXX
GREEN JR.
|
||
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Name:
Xxxxxx Xxxx Green Jr.
|
||
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Title:
Treasurer
|
||
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NETCOM
DATA CORP.
|
||
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By:
/s/ XXXXXX XXXX
GREEN JR.
|
||
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Name:
Xxxxxx Xxxx Green Jr.
|
||
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Title:
Treasurer
|
||
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UNITED
CHECK SERVICES, L.L.C.
|
||
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By:
/s/ XXXXXX XXXX
GREEN JR.
|
||
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Name:
Xxxxxx Xxxx Green Jr.
|
||
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Title:
Treasurer
|
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SUBORDINATE
LENDER:
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ADDRESS:
|
|
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0000
Xxxxxx Xxxxxxxx Xxxxx
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||
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/s/ XXXXXX
XXXXXXXXXX
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Xxxxxxx,
XX 00000
|
|
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XXXXXX
XXXXXXXXXX
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SUBORDINATION
AND INTERCREDITOR AGREEMENT – PAGE 9
THERMO
CREDIT, LLC - UNITED ESYSTEMS, INC.
