INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT dated as of August 27, 2001 by and among
Seabury Investors III, Limited Partnership, located at 0 Xxxxxxxx Xxxxxxx,
Xxx. 000, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Seabury"), The Xxxxx Foundation,
located at _____________________________________________________________,
("Xxxxx Foundation"), and Presidio Investments, LLC, located at 0000 Xxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 ("Presidio"; Presidio, Seabury,
and Xxxxx Foundation hereinafter collectively the "Senior Lenders")
WHEREAS, Xxxxxx Marketing, Inc. (the "Company"), is indebted
to Presidio (the "Presidio Indebtedness") pursuant to a promissory note executed
in the principal amount of $1,500,000 as of June 21, 2000; and
WHEREAS, Presidio has perfected a security interest in and to
the assets of the Company (the "Collateral") pursuant to the Presidio
Indebtedness;
WHEREAS, Seabury and Xxxxx Foundation are now prepared to loan
further amounts to the Company on a secured basis, provided that their
respective security interests in and to the Collateral are deemed to be as of
the same right and time and pari passu with the security interest granted to and
held by Presidio;
NOW, THEREFORE, in order to induce Seabury and Xxxxx
Foundation to extend or to continue to extend credit, make loans, advances or
other financial accommodations to the Company (collectively, "New Funding"), and
in consideration thereof, the parties hereto agree as follows.
1. Nature of Interest. The security interests of each of the
Senior Lenders in and to the Collateral shall be ratably equal and pari passu
and none shall have a priority over the other, irrespective of the date of
perfection and creation of the security interest. Regarding the Presidio
Indebtedness, Presidio agrees to cause the Second Amended and Restated
Convertible Promissory Note dated June 21, 2000, and any renewal, substitute or
replacement note to be legended to indicate that it is subject to the terms and
conditions of this Intercreditor Agreement. Presidio agrees to cooperate with
the other Senior Lenders and take all necessary actions to ensure that its
Uniform Commercial Code financing statements are amended to reflect the subject
matter of this Intercreditor Agreement. The indebtedness owed to each of the
Senior Lenders is sometimes referred to herein collectively as the "Senior
Indebtedness." Each party hereto covenants to execute and deliver such further
instruments and to take such further action in order to carry out the provisions
and intent of this Intercreditor Agreement.
2. Consent Required. (a) Without the prior written consent
of the other Senior Lenders, none of Presidio, Xxxxx Foundation or Seabury (i)
shall assign, transfer, hypothecate or dispose of any or all of its respective
loan to the Company, including the New Funding and the Presidio Indebtedness,
nor (ii) shall amend, modify or alter any agreement relating to its respective
loan to the Company, nor (iii) shall ask for, demand, take or require prepayment
of their respective loan to the Company, in whole or in part.
(b) As long as all or any portion of the Senior Indebtedness
remains outstanding, unpaid or unsatisfied, Presidio, Xxxxx Foundation, and
Seabury agree that they shall refrain from taking any unilateral action to
foreclose upon, take possession of, liquidate or otherwise proceed against the
Collateral. Upon the occurrence of an event of default under any of the Senior
Indebtedness, none of the Senior Lenders shall take any action towards enforcing
any loan document or institute, appear in or defend any action, suit or other
proceeding in connection therewith without receiving the consent of the other
Senior Lenders.
3. Distribution of Assets. Each Senior Lender agrees that upon
any distribution of the assets or readjustment of indebtedness of the Company,
whether by reason of liquidation, dissolution, bankruptcy, reorganization, or
receivership, each Senior Lender shall be entitled to receive payment in full of
any and all of the indebtedness then owing to such Senior Lender by the Company,
on a ratably equal and pari passu basis with each of the other Senior Lenders,
irrespective of the time of perfection or creation of any security interests or
liens in the Collateral on behalf of any Senior Lender. In order to enable each
Senior Lender to enforce such Senior Lender's rights hereunder in any such
action or proceeding, each Senior Lender is hereby irrevocably authorized and
empowered in such Senior Lender's discretion to make such proofs or claims
against the Company on account of the respective indebtedness , and to vote such
proofs or claims in any such proceedings, and to receive and collect on an equal
ratable basis any and all dividends or other payments or disbursements made
thereon in whatever form the same may be paid or issued, and to apply same on
account of any Senior Indebtedness.
4. Records. The Company and Presidio severally agree that
proper notations will be made in their respective books and records indicating
that the Presidio Indebtedness and the other Senior Indebtedness is subject to
this Intercreditor Agreement. All notes or other evidences of indebtedness
accepted by Presidio from the Company shall contain a specific statement therein
that the indebtedness thereby evidenced is subject to the provisions of this
Intercreditor Agreement.
5. Waiver. No waiver shall be deemed to have been made by any
Senior Lender of any of its respective rights hereunder unless the same shall be
in writing and duly signed by its respective duly authorized officers and each
waiver, if any, shall be a waiver only with respect to the specific instance
involved and shall in no way impair the rights of the other Senior Lenders in
any respect at any time, and shall not impair the future rights of a Senior
Lender in any respect. No executory agreement shall be effective to change or
modify or discharge in whole or in part, this Intercreditor Agreement, unless
such executory agreement is in writing and duly signed by the duly authorized
officers of all of the parties constituting the Senior Lenders. The Company
waives a trial by jury and the right to interpose any counterclaim or offset of
any nature or description in any litigation arising out of or relating to the
Senior Indebtedness or this Intercreditor Agreement.
6. Successors. This Intercreditor Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective heirs,
administrators, successors and assigns of the parties hereto. The term "Company"
as used in this Agreement shall include (a) any successor, individual or
individuals or corporation to which all or substantially all of the Company's
business or assets shall have been transferred; and (b) any other corporation
into or with which the Company shall have been merged, consolidated, reorganized
or absorbed.
7. Term. This Intercreditor Agreement shall remain in full
force and effect so long as the Company is indebted or liable to any of the
Senior Lenders.
8. Miscellaneous. The use of terms in the singular or plural
shall be regarded as singular or plural, as the text requires. This
Intercreditor Agreement shall be governed by and construed in accordance with
the laws of the State of New York. This Intercreditor Agreement may be executed
in any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. The
headings of the several sections of this Intercreditor Agreement are inserted
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Intercreditor Agreement. If any provision of this
Intercreditor Agreement is inconsistent with, or contrary to, any provision in
any of the Senior Indebtedness loan documents, the provisions in this
Intercreditor Agreement shall be controlling, and shall supersede such
inconsistent provision to the extent necessary to give full effect to all
provisions contained in this Intercreditor Agreement. This Intercreditor
Agreement may be amended, changed, waived, discharged or terminated with the
written consent of each of the Senior Lenders.
IN WITNESS WHEREOF, the parties have caused this Intercreditor
Agreement to be executed as of the day and year first above written.
SEABURY INVESTORS III, LIMITED PARTNERSHIP
By: Seabury Partners III, Limited Partnership, general partner
By:____________________________________________
Xxxx X. Xxxx, general partner
THE XXXXX FOUNDATION
By:____________________________________________
Xxxxxxx Xxxxx, Trustee
PRESIDIO INVESTMENTS, LLC
By:_________________________________
Xxxxxxx X. Xxxxxx
Its:________________________________
We are familiar with the Intercreditor Agreement recited above
and hereby assent to the terms and conditions thereof.
Dated: August 27, 2001
XXXXXX MARKETING, INC.
By:_________________________________
Xxxxx Xxxxxxxx
Its: Chief Executive Officer
