1
EXHIBIT 10.47
FIRST AMENDMENT TO SUBORDINATION AGREEMENT
This FIRST AMENDMENT TO SUBORDINATION AGREEMENT (this "Amendment") is
made and entered into this 23rd day of June, 2000, by and among ELTRAX SYSTEMS,
INC., a Minnesota corporation ("Eltrax"); CEREUS TECHNOLOGY PARTNERS, INC., a
Delaware corporation ("Junior Creditor"); and PNC BANK, NATIONAL ASSOCIATION, a
national banking association, in its capacity as collateral and administrative
agent (together with its successors in such capacity, "Agent")for each of the
lenders (the "Senior Creditors") now or hereafter parties to the Credit
Agreement (as defined below).
RECITALS:
Agent, Senior Creditors, Eltrax and the other borrowers from time to
time party thereto (such other borrowers and Eltrax, jointly and severally the
"Borrowers") are parties to a certain Revolving Credit and Security Agreement
dated March 14, 2000 (as at any time amended, the "Credit Agreement") pursuant
to which Senior Creditors may from time to time make loans to Borrowers secured
by all or substantially all of Borrowers' assets.
In order to induce Lenders to continue to provide such loans and other
financial accommodations to Eltrax and the other Borrowers, Junior Creditor and
Eltrax entered into a Subordination Agreement dated June 14, 2000 with Agent for
its benefit and the benefit of the other Senior Creditors (as at any time
amended, the "Subordination Agreement").
The parties desire to amend the Subordination Agreement as hereinafter
set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment, unless otherwise
defined herein, shall have the meaning ascribed to such terms in the
Subordination Agreement.
2. AMENDMENT TO SUBORDINATION AGREEMENT. The Subordination Agreement is hereby
amended by deleting the second recital paragraph and inserting the following in
lieu thereof:
Eltrax has entered into that certain Bridge Loan and Security
Agreement dated as of June 14, 2000 with Junior Creditor, as amended by
Amendment No. 1 thereto dated as of June 23, 2000 (as at any time
further amended, the "Subordinated Loan Agreement"). Pursuant to the
Subordinated Loan Agreement, Eltrax may borrow up to $5,000,000 from
Junior Creditor, as evidenced by that certain Amended and Restated
Non-Negotiable Subordinated Convertible Promissory Note in the original
principal amount of $5,000,000 dated June 23, 2000 executed by Eltrax
in favor of Junior Creditor (as at any time amended, the "Subordinated
Note"). Pursuant to the Subordinated Loan Agreement, Eltrax has granted
to Junior Creditor a security interest and lien upon all or
substantially all of Eltrax's assets as security for the payment of the
Subordinated Note.
2
3. ACKNOWLEDGMENTS AND STIPULATIONS. Junior Creditor and Eltrax acknowledges
and stipulates that the Subordination Agreement is a legal, valid and binding
obligation of each of them that is enforceable against each of them in
accordance with the terms thereof.
4. REFERENCE TO SUBORDINATION AGREEMENT. Upon the effectiveness of this
Amendment, each reference in the Subordination Agreement to "this Agreement,"
"hereunder," or words of like import shall mean and be a reference to the
Subordination Agreement, as amended by this Amendment.
5. BREACH OF AMENDMENT. This Amendment shall be part of the Subordination
Agreement and a breach of any of any representation, warranty or covenant herein
shall constitute a breach of the Subordination Agreement.
6. EXPENSES OF AGENT. Eltrax agrees to pay, ON DEMAND, all costs and expenses
incurred by Agent in connection with the preparation, negotiation and execution
of this Amendment, including, without limitation, the costs and fees of Agent's
legal counsel.
7. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be effective upon
acceptance by Agent (notice of which acceptance is hereby waived), whereupon the
same shall be governed by and construed in accordance with the internal laws of
the State of Georgia.
8. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
9. NO NOVATION, ETC. Except as otherwise expressly provided in this Amendment,
nothing herein shall be deemed to amend or modify any provision of the
Subordination Agreement, which shall remain in full force and effect. This
Amendment is not intended to be, nor shall it be construed to create, a novation
or accord and satisfaction, and the Subordination Agreement as herein modified
shall continue in full force and effect.
10. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be executed in any
number of counterparts and by different parties to this Amendment on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed to be an original
signature hereto.
11. SECTION TITLES. Section titles and references used in this Amendment shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreements among the parties hereto.
3
12. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
ELTRAX SYSTEMS, INC.
Attest: ("Eltrax")
/s/ Xxxxxxx X Xxxxxxx, III By: /s/ Xxxxxxx X. X'Xxxxxx
-------------------------- --------------------------------
Xxxxxxx X. Xxxxxxx, III, Secretary Name: Xxxxxxx X. X'Xxxxxx
----------------------- -----------------------------
Title: Chairman
-----------------------------
[CORPORATE SEAL]
CEREUS TECHNOLOGY PARTNERS, INC.
("Junior Creditor")
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
-------------------------------
Title: Executive vice President
------------------------------
and CFO
[CORPORATE SEAL]
Accepted and agreed to:
PNC BANK, NATIONAL ASSOCIATION, as Agent
("Agent")
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: Vice President
------------------------------
4
Acknowledged and agreed to this ____
day of June, 2000
ATTEST: ELTRAX TECHNOLOGY SERVICES
GROUP, INC.
/s/ Clunet X. Xxxxx By: /s/ Xxxxxxx X Xxxxxxx, III
--------------------------- ------------------------------------
/s/ Clunet X. Xxxxx, Secretary Name: Xxxxxxx X. Xxxxxxx, III
--------------- -------------------------------
Title: CFO
------------------------------
[CORPORATE SEAL]
ATTEST: ELTRAX ASP GROUP, LLC
/s/ Clunet X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx, III
--------------------------- ------------------------------------
Clunet X. Xxxxx, Secretary Name: Xxxxxxx X. Xxxxxxx, III
--------------- -------------------------------
Title: CFO
------------------------------
[CORPORATE SEAL]
ATTEST: SQUIRREL SYSTEMS, INC.
/s/ Clunet X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx, III
--------------------------- ------------------------------------
Clunet X. Xxxxx, Secretary Name: Xxxxxxx X. Xxxxxxx, III
--------------- -------------------------------
Title: CFO
------------------------------
[CORPORATE SEAL]
ATTEST: SENERCOMM, INC.
/s/ Clunet X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx, III
--------------------------- ------------------------------------
Clunet X. Xxxxx, Secretary Name: Xxxxxxx X. Xxxxxxx, III
--------------- -------------------------------
Title: CFO
------------------------------
[CORPORATE SEAL]
ATTEST: ELTRAX CUSTOMER CARE GROUP, INC.
/s/ Clunet X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx, III
--------------------------- ------------------------------------
Clunet X. Xxxxx, Secretary Name: Xxxxxxx X. Xxxxxxx, III
--------------- -------------------------------
Title: CFO
------------------------------
5
[CORPORATE SEAL]
ATTEST: ELTRAX INTERNATIONAL, INC.
/s/ Clunet X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx, III
--------------------------- -------------------------------
Clunet X. Xxxxx, Secretary Name: Xxxxxxx X. Xxxxxxx, III
--------------- --------------------------
Title: CFO
-------------------------
[CORPORATE SEAL]
ATTEST: ELTRAX HOSPITALITY GROUP, INC.
/s/ Clunet X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx, III
--------------------------- -------------------------------
Clunet X. Xxxxx, Secretary Name: Xxxxxxx X. Xxxxxxx, III
--------------- --------------------------
Title: CFO
-------------------------
[CORPORATE SEAL]
ATTEST: SOLEMN ACQUISITION CORPORATION
/s/ Xxxxxxx X. Xxxxxxx, III By: /s/ Xxxxxx X. Xxxxxxx
--------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx, III, Assistant Treasurer Name: Xxxxxx X. Xxxxxxx
------------------------ --------------------------
Title: CFO
-------------------------
[CORPORATE SEAL]
