SUBORDINATION AND INTERCREDITOR AGREEMENT
Exhibit 10.6
This Subordination and Intercreditor Agreement (this “Agreement”) is between Blue Moon Energy
Partners LLC, a Florida limited liability company (the “Subordinate Creditor”), and the holder of
the Senior Note (defined below) signatory hereto (the “Senior Creditor”), and is dated as of
June 4, 2009.
BACKGROUND
The Senior Creditor desires to purchase from Steel Vault Corporation, a Delaware corporation
(the “Issuer”), a Secured Convertible Promissory Note to be issued in the aggregate principal
amount of $500,000.00 (collectively, the “Senior Note”), which Senior Note will be secured by all
personal property of the Issuer pursuant to a Security Agreement entered into on the date hereof.
Subordinate Creditor has previously purchased from Issuer a Secured Convertible Promissory
Note in the principal amount of $190,000.00 (the “Subordinate Note”), which Subordinate Note is
secured by all personal property of the Issuer pursuant to a Security Agreement entered into on
March 20, 2009.
Subordinate Creditor is an affiliate of the Issuer and will derive a substantial benefit from
the purchase of the Senior Note by the Senior Creditor.
The Senior Creditor is unwilling to purchase the Senior Note unless the Subordinate Note is
subordinated to the Senior Note and to all of the Issuer’s obligations thereunder in the manner
hereinafter set forth.
Accordingly, in consideration of the mutual covenants and agreements set forth below, the
parties agree as follows:
TERMS
1. Payment Subordination. Upon the occurrence and during the continuance of any monetary
default or any event of default under the Senior Note, the Subordinate Creditor will not accept any
payment made by the Issuer in respect of the Subordinate Note until the Senior Note has been fully
paid and satisfied. Senior Creditor will have no right to demand payments already made to
Subordinate Creditor prior to any such default or event of default. The Subordinate Creditor will
not be deemed to have any knowledge of any such default or event of default until it receives
written notice thereof from the Senior Creditor.
2. Lien Subordination. Notwithstanding the terms or provisions of any agreement or
arrangement which any party may now or hereafter have with the Issuer or any rule of law and
irrespective of the time, order or method or attachment or perfection of any security interest or
the recordation or other filing in any public record of any financing statement, any lien,
encumbrance or security interest in the collateral granted to the Senior Creditor by the Issuer,
whether or not perfected, or any other right, title or interest of the Senior Creditor in such
collateral now or hereafter held by the Senior Creditor or Subordinate Creditor, are and will
remain at all times senior to any lien, encumbrance or security interest in the collateral granted
to the Subordinate Creditor by the Issuer, whether or not perfected, or any other right, title
or interest of the Subordinate Creditor in the collateral now or hereafter held by the Subordinate
Creditor.
3. Priority of Payments. In case of any assignment by the Issuer for the benefit of its
creditors, any bankruptcy proceedings instituted by or against the Issuer’s assets, and any
dissolution or other winding up of the affairs of the Issuer or of the Issuer’s business, and in
all such cases respectively, the authorized representatives and owners of the Issuer and any
assignee, trustee in bankruptcy, receiver, and other person or persons in charge are hereby
directed to pay the Senior Creditor the full amount owed under the Senior Note before making any
payments owed to Subordinate Creditor under the Subordinate Note.
4. Conversion Right; Effect of Conversion. The Senior Creditor agrees that nothing herein
will prevent Subordinate Creditor from exercising its conversion rights under the Subordinate Note.
Upon either (a) the conversion of the Subordinate Note or (b) the conversion of the Senior Note,
this Agreement will terminate.
5. Covenants of Subordinate Creditor. The Subordinate Creditor hereby agrees that so long as
any sum remains outstanding on the Subordinate Note:
a. The Subordinate Creditor will simultaneously send to the Senior Creditor due notice of all
defaults under the Subordinate Note. The Senior Creditor will have the right, but not the
obligation, to cure any such default within ten (10) days after the expiration of the applicable
grace period permitted to the Issuer under the Subordinate Note.
b. The Subordinate Creditor will not, without the prior written consent of the Senior
Creditor, take any Enforcement Action (hereinafter defined). For the purposes of this Agreement,
the term “Enforcement Action” will mean with respect to the Subordinate Note, (i) the acceleration
of all or any part of the indebtedness evidenced by the Subordinate Note, (ii) the commencement of
any foreclosure proceedings, the exercise of any power of sale, or the obtaining of a receiver with
respect to, or the taking of possession or control of, any of the Issuer’s property, (iii) the
exercise of any rights of set-off or recoupment, (iv) the commencement or joining in of any
bankruptcy, reorganization or insolvency proceedings against the Issuer under any federal or state
law, or (v) the taking of any other enforcement action against the Issuer.
c. The Subordinate Creditor will hold any collateral and proceeds thereof which may come into
Subordinate Creditor’s possession in trust for the Senior Creditor, and will immediately turn over
any such collateral and/or proceeds to the Senior Creditor.
d. The Subordinate Creditor will not pledge, assign, hypothecate, transfer, convey or sell the
Subordinate Note or any interest in the Subordinate Note or modify, waive or amend any of the terms
or provisions of the Subordinate Note Documents, without the prior written consent of the Senior
Creditor.
6. Further Assurances. Each party hereto will cooperate fully with each other in order to
promptly and fully carry out the terms and provisions of this Agreement. Each party hereto will
from time to time execute and deliver such other agreements, documents or
instruments and take such other actions as may be reasonably necessary or desirable to
effectuate the terms of this Agreement.
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7. No Waiver. The failure of any party to insist in any one or more instances upon
performance of any terms or conditions of this Agreement will not be construed as a waiver of
future performance of any such term, covenant, or condition, and the obligations of either party
with respect to such term, covenant, or condition will continue in full force and effect.
8. Right to Specific Performance. Each party hereto acknowledges that to the extent that no
adequate remedy at law exists for breach of its obligations under this Agreement, in the event
either party fails to comply with its obligations hereunder, the other party will have the right to
obtain specific performance of the obligations of such defaulting party, injunctive relief or such
other equitable relief as may be available.
9. No Third Party Beneficiaries. No person, including, without limitation, the Issuer, other
than the parties hereto and their successors and permitted assigns will have any rights under this
Agreement.
10. Binding Effect. This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
11. Severability. Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction will, as to such jurisdiction only, be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, the provision will be interpreted
to be only as broad as is enforceable.
12. Titles. The titles and headings preceding the text of the sections of this Agreement have
been inserted solely for convenience of reference and do not constitute a part of this Agreement or
affect its meaning, interpretation, or effect.
13. Entire Agreement. This Agreement contains the final, complete, and exclusive expression
of the understanding of the parties hereto with respect to the transactions contemplated in this
Agreement, and supersedes any prior or other contemporaneous agreement or representation by or
among the parties related to the subject matter of this Agreement.
14. Amendment. This Agreement may not be amended, modified, or changed in any respect and no
waiver of any requirement hereof will be effective except by an agreement in writing signed by the
Subordinate Creditor and the Senior Creditor.
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15. Notices. All notices, requests, demands, claims and other communications under this
Agreement will be in writing. Any notice, request, demand, claim or other communication under this
Agreement will be deemed duly given if it is sent: (a) by personal delivery, or (b) by commercial
delivery or overnight courier service that requires a signature as evidence of delivery, and, in
each case, addressed to the intended recipient as set forth below, or to any other or additional
persons and addresses as the parties may from time to time designate in a writing delivered in a
writing in accordance with this Section 15:
If to the Senior Creditor:
As set forth below the signature of the Senior Creditor on the signature page hereof
If to the Subordinate Creditor:
Blue Moon Energy Partners LLC
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
16. Governing Law/Venue. The validity, construction, enforcement, and interpretation of this
Agreement are governed by the laws of the State of Florida and the federal laws of the United
States of America, excluding the laws of those jurisdictions pertaining to resolution of conflicts
with laws of other jurisdictions. The Subordinate Creditor and the Senior Creditor (a) consent to
the personal jurisdiction of the state and federal courts having jurisdiction in Palm Beach County,
Florida, (b) stipulate that the proper, exclusive, and convenient venue for any legal proceeding
arising out of this Agreement is Palm Beach County, Florida, for state court proceedings, and the
Southern District of Florida, for federal district court proceedings, and (c) waive any defense,
whether asserted by a motion or pleading, that Palm Beach County, Florida, or the Southern District
of Florida, is an improper or inconvenient venue.
17. Interpretation. Neither this Agreement nor any uncertainty or ambiguity in this Agreement
will be construed or resolved against any party, whether under any rule of construction or
otherwise. No party to this Agreement will be considered the draftsman. The parties acknowledge
and agree that this Agreement has been reviewed, negotiated, and accepted by all the parties and
their attorneys and will be construed and interpreted according to the ordinary meaning of the
words used so as to fairly accomplish the purposes and intentions of the parties.
18. Counterparts. This Agreement may be executed (including by facsimile transmission) in two
or more counterparts, each of which will be deemed to be an original, but all of which together
will constitute one and the same instrument.
19. Enforcement of Agreement. The parties agree that irreparable damage will occur if any of
the provisions of this Agreement are not performed in accordance with its specific terms or are
otherwise breached. It is therefore agreed that the parties will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to specifically enforce the terms and
provisions of this Agreement in any court of the United States or any state having jurisdiction, in
addition to any other remedy to which they are entitled.
[The next page is the signature page.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date and year first
above written.
| SUBORDINATE CREDITOR: BLUE MOON ENERGY PARTNERS, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Its: Manager | ||||
| SENIOR CREDITOR: VERICHIP CORPORATION |
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| By: | /s/ Xxxxxxx Xxxxx | |||
| Its: Secretary | ||||
| Address for Notices: 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx 000 Xxxxxx Xxxxx, Xxxxxxx 00000 Attn: Xxxxxxx X. Xxxxxxx |
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