Exhibit 10.27
AGENCY AGREEMENT
This Agency Agreement (the "Agreement") is made by and among the
investors named on Schedule A hereto (each an "Investor" and collectively, the
"Investors"), and Personal Resources Management, Inc., acting in its capacity as
collateral agent hereunder for the Investors (together with its successors and
assigns, the "Agent").
Background
1. The Investors have agreed to advance up to Six Hundred and Forty
Thousand Dollars ($640,000.00) (the "Loan") to Titan PCB East, Inc., a Delaware
corporation (the "Borrower"). The Loan is evidenced by a secured promissory note
in the amount of Six Hundred and Forty Thousand Dollars ($640,000.00) (the
"Note") delivered to the Investors in conjunction with the Loan, in the form
attached hereto as Exhibit A. Pursuant to a Security Agreement, dated as of the
date hereof, between the Borrower and the Agent, on behalf of the Investors (the
"Security Agreement"), the obligations of the Borrower under the Note are
secured by a security interest, granted in favor of the Agent for the benefit of
the Investors, in and to all property and assets of the Borrower (the "Security
Interest"). The Borrower's obligations, as set forth in the Note and the
Security Agreement are sometimes referred to as the "Borrower's Obligations".
2. The Investors desire to enter into this Agreement in order to set
forth their understanding with respect to several matters pertaining to the
servicing of the Loan and the enforcement of their respective rights with
respect to the Note.
3. The Investors desire to appoint the Agent to act on behalf of all
Investors consistent with the terms and conditions of this Agreement and to set
forth the duties and responsibilities of the Agent, the allocation of certain
payments by the Borrower among the Agent and the Investors and decisions
relating to the exercise of remedies set forth herein. Unless otherwise defined
herein, capitalized terms have the meanings afforded them in the Note.
N O W , T H E R E F O R E ,
In consideration of the premises and the mutual covenants and
agreements herein set forth, and in reliance on the representations and
warranties contained herein, the parties hereby agree as follows:
Section 1. Loan Advance. The Investors have each agreed to advance,
pursuant to the terms and conditions set forth in the Note, their respective
percentage interests (the "Percentage Interests") in the Note, which are set
forth in Schedule A attached hereto.
Section 2. Delivery of Funds; Credit Amount. At the time of the Closing
of the Note, each Investor shall have delivered it's Percentage Interest to the
Borrower. Such amount may be reduced pro-rata in the event the Borrower's
requests a partial draw under the Note.
Section 3. Ownership Interest.
(a) Upon delivery of the funds described in Section 2, each
Investor shall own an interest in the Loan and the Borrower's
Obligations equal to its Percentage Interest as described on
Schedule A.
(b) Notwithstanding the "Percentage Interests", and except as
otherwise stated herein, the Investor shall thereupon own,
pari passu to each of the other Investors, an undivided
fractional interest in:
(i) the Borrower's Obligations;
(ii) all payments made on or in respect of the
Borrower's Obligations;
(iii) all recoveries or distributions in
connection with the Borrower's Obligations;
and
(iv) all present and future collateral (and all
proceeds in connection therewith) securing
the same.
(all of the foregoing being included in the term "Borrower's
Obligations" unless the context clearly requires otherwise).
Section 4. Agent.
(a) Each Investor hereby authorizes and appoints the Agent to act
on behalf of such Investor as collateral agent for and
representative of such Investor under this Agreement, the
Security Agreement and the Note, to enforce the rights
provided under this Agreement, the Security Agreement
(including enforcement of the Security Interest) and the Note,
and the obligations of the Borrower thereunder and, to
exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Agent by the
terms hereof and thereof, together with such powers as may be
reasonably incidental thereto.
(b) Subject to Section 8, all actions taken in accordance with
paragraph (a) above shall be binding upon each Investor for
all purposes. No Investor shall have any right to exercise,
individually, any rights or remedies under the Note (unless
required by applicable law, in which case any recovery
thereunder shall be subject to the terms of Section 10) or the
Security Agreement (including enforcement of the Security
Interest), it being understood and agreed that all of such
rights and remedies shall be exercised solely by and through
the Agent for the benefit of all of the Investors. Any action
by any Investor in violation of this Section 4(b) shall be
void and without authority.
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(c) Subject to Section 4(b), this Agreement does not limit any
rights afforded to the Investors under the Note. Nothing
contained in this Agreement is intended to limit the
Borrower's obligation to make payment of all Borrower
Obligations owed by it to the Investors strictly in accordance
with the terms of the Note and instruments or agreements
delivered in connection therewith.
(d) The Agent (i) may resign as such at any time upon at least 30
days' notice to the Investors, or (ii) may be replaced by a
vote of Investors holding majority of the principal and
interest then outstanding and owing under the Note (the
"Requisite Holders"). In either the case of clause (i) or
clause (ii) of the preceding sentence, the Requisite Holders
shall appoint another Investor as a successor Agent. If the
Requisite Holders do not make such appointment within ten
business days prior to the scheduled final date of the Agent,
the retiring Agent shall appoint a new Agent from among the
Investors or, if no Investor accepts such appointment, from
among commercial banking institutions or trust institutions
generally. In furtherance of the foregoing, upon the
announcement that the Agent will resign in its capacity as the
Agent, or that the Requisite Holders will replace the Agent,
each of the Investors agree to use their best efforts to
promptly appoint another Agent. Upon the acceptance of any
appointment as the Agent hereunder, such successor Agent shall
be entitled to receive from the retiring Agent such documents
of transfer and assignment as such successor Agent may
reasonably request, and shall thereupon succeed to and become
vested with all rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement and the
Note. After the retiring Agent's resignation hereunder as the
Agent, the provisions of this Section 4 shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was the Agent under this Agreement and the Note, and
any other agreement relating thereto.
Section 5. Servicing of the Loan; Limited Liability.
(a) The Agent shall act as agent for the Investors in servicing
the Loan and the Borrower's Obligations, and subject to
Section 3 hereof, Agent will enforce the Borrower's
Obligations.
(b) The Agent and its employees, agents, and attorneys shall not
be liable for any actions taken, or omitted to be taken, in
good faith, and they shall only be liable for grossly
negligent, reckless, and/or willful misconduct.
Section 6. No Representation or Warranty.
(a) No Investor has made any warranty or representation to any
other Investor, expressed or implied, with respect to the
Loan, the adequacy of security for the Loan, the existing or
future solvency or financial worth of the Borrower, and the
ability of the Borrower to repay the Loan and the Borrower's
Obligations. Each Investor acknowledges that the Loan and the
Borrower's Obligations carry a high degree of risk; that the
Borrower may default on its obligations under the Loan, which
may result in a bankruptcy filing and/or foreclosure action
and/or a deterioration of the collateral for the Loan; and
that it may not be possible for the Investors to collect the
full principal balance of the Loan, any or all of the accrued
interest on the Loan, and/or any or all other amounts due with
respect to the Loan.
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(b) All information, data, projections and other materials
heretofore supplied to each Investor has been extrapolated
from material supplied by the Borrower or due diligence. Each
Investor acknowledges and agrees that no Investor makes any
representation or warranty as to the nature and quality of
such information. Each Investor acknowledges and agrees that
it has had ample opportunity to make and have made such
investigations as it has deemed necessary under the
circumstances.
Section 7. Records; Notices.
(a) The Agent shall maintain all records in conjunction with the
Loan and shall, at all times, reflect that it is acting as
agent for the Investors in accordance with this Agreement. Any
Investor shall have the right, on reasonable prior notice, to
inspect the Agent's records with respect to the Loan and the
Borrower' s Obligations.
(b) Each Investor shall give notice promptly to the Agent of the
occurrence of any Event of Default of which it has knowledge.
Promptly following receipt, the Agent shall give a copy of
such notice which it has received pursuant to this Section
7(b) to all of the Investors.
Section 8. Participant Consent Required. Notwithstanding Section 4, the
Agent shall not have the right to take any of the following actions without
obtaining the consent of all of the Investors:
(a) to make or permit any substitution, withdrawal or release of
any Collateral or other security securing the payment of the
Loan;
(b) to waive, amend or modify the terms of the Note or other
Instruments of Collateral or other documents executed in
conjunction with the Loan; or
(c) to initiate legal proceedings to collect on the Borrower's
Obligations, and/or to foreclose any security interest
securing the payment and performance of the Borrower's
Obligations.
In all other respects, the Agent shall have the absolute right and ability to
administer and/or service the Loan and the Borrower's Obligations without the
need to seek approval from Investors, provided that it will regularly report to
and provide notice to the Investors of all material actions taken with respect
to the Loan.
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Section 9. Expenses. All expenses including, but not limited to,
counsel fees and court costs paid or incurred by any Investor (an "Obligated
Party") in any action to collect or foreclose on any of the Borrower's
Obligations, the Security Interest or on the Loan, excepting litigation between
the Investors, shall be borne by the Investors in accordance with their
respective Percentage Interests at the time of the default or the failure of
performance giving rise to the action to collect or enforce the rights of the
Investors under the Note, the Security Agreement, or the Borrower's Obligations.
Payment shall be made by each Investor to the Obligated Party within five (5)
days after receipt of notice of demand from the Obligated Party to the
Participant for the payment of his pro rata share. If such payment is not made
when due, the Obligated Party may make such payment on the defaulting
Participant's behalf, such payment shall bear interest at the rate of twelve
percent (12.0%) per annum and shall be automatically repaid to the Obligated
Party out of the first funds received on behalf of the defaulting Participant
from or on behalf of the Borrower.
Section 10. Distribution of Sale or Refinance Proceeds.
(a) If Borrower repays or refinances the Loan, or if the Borrower
is in default of the Borrower's Obligations and the Agent
sells or disposes of any Collateral for the Loan or the Agent
or any Investor otherwise recovers all or part of the
principal and interest due and owing under the Borrower's
Obligations, the net proceeds of said refinances or sale or
the amount of principal and interest repaid shall be
distributed in the following order of priority:
(i) First, repayment of each Investors expenses
described above in Section 9, pari passu and pro
rata;
(ii) Second, repayment of remaining principal and
interest (exclusive of default interest, late
charges, and other prepayment penalties) to each
Investor;
(iii) Third, repayment of default interest, late
charges, and prepayment penalties to each Investor
pari passu up to their respective Percentage
Interests;
(b) The priorities of allocation set forth in Section 10(a) shall
apply in all circumstances, including with respect to any
distribution made in any case or proceeding under Title 11 of
United States Code or any other proceeding relating to the
Borrower under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation.
(c) If any Investor (an "Excess Party") shall obtain any payment
or other recovery (whether voluntary, involuntary, by
application of setoff, or otherwise) as a result of the
realization, sale or other remedial disposition of, or
foreclosure on, any Collateral or any repayment under the Note
in excess of the amount it is then entitled to receive under
the terms of this Agreement and the Note, such Excess Party
shall hold such amount in trust for the ratable benefit of the
other Investors in accordance with the terms of this Agreement
and shall pay an amount equal to such excess to the Agent for
distribution to the remaining Investors in accordance with the
terms of this Agreement.
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Section 11. Notices. Any notice or other communication to be given
hereunder shall be in writing and shall be mailed or telecopied to such party at
the address or number set forth below each Investor's name on Schedule A hereto
or to such other person, address or number as the party entitled to such notice
or communication shall have specified by notice to the other party given in
accordance with the provisions of this Section. Any such notice or other
communication shall be deemed given: (i) if mailed, certified or registered,
return receipt requested, properly addressed and with postage prepaid on the
first to occur of the date of receipt or the third business day after mailing;
or (ii) if sent by telecopy, when transmitted, provided a copy is also sent by
mail, return receipt requested; or (iii) on the date delivered by hand or
courier.
Section 12. Cost of Suit or Enforcement. If any Investor resorts to
suit or other legal proceedings to enforce any right or remedy hereunder, the
non-prevailing party agrees to pay the prevailing party' s costs of suit and
enforcement, including reasonable attorney's fees.
Section 13. Governing Law. This Agreement shall be construed in
accordance with and governed by laws of the State of New York, without giving
effect to its conflict of laws or choice of law provisions or rules. Any
litigation based hereon, or arising out of, under or in connection with, this
Agreement shall be brought and maintained in the Courts of the State of New York
(sitting in the City of New York, New York County) or in the United States
District Court for the Southern District of New York. The Agent and each
Investor hereby expressly and irrevocably submits to the jurisdiction of the
Courts of the State of New York and of the United States District Court for the
Southern District of New York for the purpose of any such litigation as set
forth above and irrevocably agree to be bound by any judgment rendered thereby
in connection with such litigation.
Section 14. Counterparts; Facsimile. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. Signature pages
received by facsimile shall be deemed originals for purposes of enforcement of
this Agreement.
Section 15. Successor and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Investors, their respective successors, legal
representatives, and assigns.
Section 16. Gender. Whenever the context so requires, the singular and
plural shall be interpreted to include the other, and the neutral and male
genders shall be interpreted to reflect the applicable genders.
Section 17. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the Investors and supersedes all prior
agreements and understandings relating to the subject matter hereof.
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Section 18. Authorization. Each of the Investors warrants and
represents that it is duly authorized to execute this Agreement and comply with
its obligations hereunder.
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IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the 27th of February, 2003.
THE AGENT:
PERSONAL RESOURCES MANAGEMENT, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: President
THE INVESTORS:
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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By: /s/ Xxxx Xx Xxxx
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Name: Xxxx Xx Xxxx
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By: /s/ Xxxxxxx X Xxxxx, Xx
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Name: Xxxxxxx X. Xxxxx Xx
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Xxxxxxx X Xxxxxxx, Xxxx Xxx Xxxxxxxx TTEE
u/w/o Xxxxxxx X Xxxxxxx
By: /s/ Xxxxxxx X Xxxxxxx
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Name: Xxxxxxx X Xxxxxxx
Title: Trustee
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By: /s/ Xxxx Xxx Xxxxxxxx
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Name: Xxxx Xxx Xxxxxxxx
Title: Trustee
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By: /s/ Xxxxxxx X Xxxxxxx
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Name: Xxxxxxx X Xxxxxxx
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By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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SCHEDULE A
(Percentage Interests as of February 27, 2003)
Names and Addresses of Investors
Name of Secured Party Percentage Interest Principal Amount of Note
--------------------- ------------------- ------------------------
Xxxxxx Xxxxxx 7.82 $50,000.00
Xxxxxxx Xxxxxxx 9.38 $60,000.00
Xxxxxxx F Mordando Trustee, Xxxx 7.82 $50,000.00
Xxx Xxxxxxxxx Trustee u/w/o Xxxxxxx
X Xxxxxxx
Xxxxxxx X. Xxxxx 7.82 $50,000.00
Xxxx XxXxxx 4.69 $30,000.00
Xxxxx Xxxxxx 23.44 $150,000.00
Xxxxx Xxxxxxxxxx - 15.63 $100,000.00
Xxxx Xxxx 7.82 $50,000
Xxxx Xxxxx 15.63 $100,000.00
Total 100% $640,000.00
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