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EXHIBIT 10.49
SUBORDINATION AGREEMENT
by and among
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
DELL ▇▇▇▇▇▇▇▇▇
and
FOOTHILL CAPITAL CORPORATION
August 16, 1996
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INDEX
SECTION HEADING PAGE
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1. Certain Defined Terms 2
a. General . . . . . . . . . . . . . . . . . . . . . 2
b. Other Terms . . . . . . . . . . . . . . . . . . . 4
2. Representations, Warranties, and Covenants 4
a. Junior Debt Documents . . . . . . . . . . . . . . 4
b. No Default . . . . . . . . . . . . . . . . . . . 5
c. Notice of Default . . . . . . . . . . . . . . . . 5
d. Further Action. . . . . . . . . . . . . . . . . . 5
3. Subordination. . . . . . . . . . . . . . . . . . . . 5
a. General . . . . . . . . . . . . . . . . . . . . . 5
b. Payments to Subordinating Lender . . . . . . . . 6
c. Priority of Interests in Collateral . . . . . . . 7
4. Restrictions on Subordinating Lender's Actions . . . 8
5. Remedies . . . . . . . . . . . . . . . . . . . . . . 8
6. No Action to Violate Senior Lender Agreements . . . 9
7. No Amendment of Junior Debt Documents. . . . . . . . 9
8. Extensions, Compromises, etc. . . . . . . . . . . . 9
9. Waiver . . . . . . . . . . . . . . . . . . . . . . . 9
10. No Constraint on Senior Lender . . . . . . . . . . . 9
11. Impact of Bankruptcy . . . . . . . . . . . . . . . . 10
12. Casualty Insurance; Condemnation Proceeds . . . . . 10
13. Miscellaneous. . . . . . . . . . . . . . . . . . . . 11
a. Amendment . . . . . . . . . . . . . . . . . . . . 11
b. Binding Effect; Governing Law; Venue. . . . . . . 11
c. Counterparts. . . . . . . . . . . . . . . . . . . 12
d. Headings. . . . . . . . . . . . . . . . . . . . . 12
e. Attorneys' Fees; etc. . . . . . . . . . . . . . . 12
f. Severability. . . . . . . . . . . . . . . . . . . 12
g. Entire Agreement. . . . . . . . . . . . . . . . . 12
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INDEX
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(continued)
PAGE(S)
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h. Notice. . . . . . . . . . . . . . . . . . . . . . 12
i. Termination . . . . . . . . . . . . . . . . . . . 13
k. Rules of Construction . . . . . . . . . . . . . . 14
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SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement"), dated as of August 16,
1996, is entered into by and among ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇"), an individual
residing in the State of Texas, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇"), an individual
residing in the State of Texas, and DELL ▇▇▇▇▇▇▇▇▇ ("Dell"), an individual
residing in the State of Texas (collectively, "Subordinating Lender"), and
FOOTHILL CAPITAL CORPORATION, a California corporation ("Senior Lender"), with
reference to the following facts:
RECITALS
▇. ▇▇▇▇▇▇▇▇▇ Industries, L.P., ▇▇▇▇▇▇▇▇▇ Industries, Inc. and NBF, Inc.
("Borrower"), has entered into the Junior Debt Documents (as defined below)
with Subordinating Lender, pursuant to which Subordinating Lender has extended
certain loans and financial accommodations to Borrower.
B. Borrower has requested that Senior Lender enter into various agreements
with Borrower, including that certain Loan and Security Agreement, of even date
herewith (the "Senior Loan Agreement"), pursuant to which Senior Lender would
extend various loans and financial accommodations to Borrower.
C. Senior Lender is unwilling to enter into the Senior Loan Agreement with
Borrower and to extend to Borrower the loans and financial accommodations
contemplated thereunder unless Subordinating Lender enters into this Agreement.
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D. Subordinating Lender is interested in the financial success of Borrower
and will benefit by the loans and financial accommodations which Senior Lender
proposes to extend to Borrower under the Senior Loan Agreement.
E. Accordingly, to induce, but without obligating, Senior Lender to enter
into the Senior Loan Agreement with Borrower and to extend to Borrower the
loans and financial accommodations contemplated thereunder, Subordinating
Lender is willing to enter into this Agreement with Senior Lender.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Certain Defined Terms.
a. General: When used in this Agreement, the following terms have the
following respective meanings:
"Agreement" has the meaning set forth in the introduction hereto.
"Assignment" has the meaning set forth in the definition of "Junior Debt
Documents".
"Borrower" has the meaning set forth in the recitals of this Agreement.
"Consent" has the meaning set forth in the definition of "Junior Debt
Documents".
"Junior Debt" means all present and future indebtedness and other
obligations (direct or indirect) owing by Borrower to Subordinating Lender (but
shall not include salary, bonuses, employee benefits or reimbursement for
normal employee expenses) under the Junior Debt Documents, together with any
other debts, demands, monies, indebtedness, liabilities, and obligations now or
hereafter owed by Borrower to Subordinating Lender,
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including interest, principal, costs, and other charges, together with
all claims, rights, causes of action, judgments, decrees and other
obligations.
"Junior Deed of Trust" has the meaning set forth in the definition of
"Junior Debt Documents".
"Junior Debt Documents" means all instruments and agreements
evidencing or securing the Junior Debt, including (i) that certain
Promissory Note, dated March 28, 1993, in the original principal amount
of Five Hundred Thousand Dollars ($500,000) originally made by ▇▇▇▇▇▇▇▇▇
Industries, Inc., a Texas corporation, and payable to the order of ▇▇▇
▇▇▇▇▇▇▇, as modified by that certain Renewal, Extension and Modification
Agreement dated as of April 6, 1993, between ▇▇▇▇▇▇▇▇▇ Industries, Inc.,
a Texas corporation, and ▇▇▇ ▇▇▇▇▇▇▇ (the "Modification"), and as
modified by that certain Assignment, Consent and Amendment of Note and
Deed of Trust dated as of October 1, 1993, recorded in Volume 93219,
Page 4664, of the Real Property Records of Dallas County, Texas, by and
among ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Industries, Inc., a Texas corporation,
▇▇▇▇▇▇▇▇▇ Industries, Inc., a Delaware corporation, and Borrower (the
"Consent"), and assigned to Subordinating Lender (in undivided interests
of 40% to ▇▇▇▇▇, 40% to ▇▇▇▇▇ and 20% to Dell) pursuant to that certain
Assignment of Note and Deed of Trust dated as of December 15, 1993,
recorded in Volume 94112, Page 05990 of the Real Property Records of
Dallas Country, Texas (the "Assignment") (said promissory note being
herein referred to as the "Junior Note"), and (ii) that certain Deed of
Trust Dated May 13, 1993, executed by ▇▇▇▇▇▇▇▇▇ Industries, Inc., a
Texas corporation for the benefit of ▇▇▇ ▇▇▇▇▇▇▇, recorded in Volume
93115, Page 5605, of the Real Property Records of Dallas County, Texas
(as amended by the Modification and Consent, the "Junior Deed of Trust")
covering the Property and assigned to Subordinating Lender pursuant to
the Assignment.
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"Modification" has the meaning set forth in the definition of
"Junior Debt Documents".
"Property" has the meaning set forth in Section 3(a) of this
Agreement.
"Senior Debt" has the meaning set forth in Section 3(a) of this
Agreement.
"Senior Deed of Trust" has the meaning set forth in Section 3(a) of
this Agreement.
"Senior Lender" has the meaning set forth in the introduction of
this Agreement.
"Senior Loan Agreement" has the meaning set forth in the
recitals of this Agreement.
"Subordinating Lender" has the meaning set forth in the
introduction of this Agreement.
b. Other Terms. Unless otherwise defined in this Agreement,
any and all initially capitalized terms set forth in this Agreement
shall have the meaning ascribed thereto in the Senior Loan Agreement.
2. Representations, Warranties, and Covenants. Subordinating
Lender and Borrower each represents, warrants, and covenants (jointly
and severally) to Senior Lender that:
a. Junior Debt Documents. Upon Senior Lender's request, to
be given by notice to Borrower and Subordinating Lender: (i) a copy of
all Junior Debt Documents shall be delivered to Senior Lender; and/or
(ii) all Junior Debt Documents shall be conspicuously marked with
substantially the following legend:
"Subject to that certain Subordination Agreement, dated as of
August 16, 1996, by and among ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an
individual residing in the State of Texas, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
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an individual residing in the State of Texas, and Dell
▇▇▇▇▇▇▇▇▇, an individual residing in the State of Texas, and
Foothill Capital Corporation, a California corporation."
and after being so marked the originals of the Junior Debt Documents shall be
exhibited to Senior Lender and a copy of the marked Junior Debt Documents shall
be delivered to Senior Lender.
b. No Default. Borrower is not in default under any Junior
Debt Document.
c. Notice of Default. Subordinating Lender and Borrower shall
each promptly notify Senior Lender of all defaults, events of default,
and unmatured events of default under any Junior Debt Document.
d. Further Action. Upon Senior Lender's request, Subordinating
Lender will promptly take all actions which Senior Lender believes
appropriate to carry out the purposes of this Agreement, including
actions to effectuate Senior Lender's disposition of the Collateral.
e. Assignment of Junior Debt. The Junior Debt is not and will
not be subordinated or assigned (other than to third parties who have
agreed to become bound by the terms of this Agreement) except to Senior
Lender.
3. Subordination.
a. General. As more fully provided in the remainder of this
Section 3, the Junior Debt is hereby subordinated and made junior to all
obligations now or hereafter owing to Senior Lender by Borrower. The
obligations referred to in the preceding sentence as being owing to
Senior Lender are referred to in this Agreement as the "Senior Debt,"
and include the Obligations, all present and future representations,
warranties, covenants, agreements, indemnities, and other obligations
which Borrower or its successors and assigns
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may incur to Senior Lender, including (without limitation) those
incurred after the filing of a bankruptcy petition by or against
Borrower. The Senior Debt is secured in part by that certain Deed of
Trust (With Assignment of Rents and Fixture Filing) dated as of even
date, executed by Borrower in favor of ▇▇▇▇▇ ▇. ▇▇▇▇▇, as trustee for
the benefit of Senior Lender and recorded in the Real Property Records
of Dallas County, Texas (the "Senior Deed of Trust"), covering the real
property located in Dallas County, Texas, as described on Schedule I
attached hereto and incorporated herein by reference (the "Property").
b. Payments to Subordinating Lender. Borrower and
Subordinating Lender agree (and Subordinating Lender acknowledges such
agreement) that Borrower shall not: (i) make any payments of principal
or interest to Subordinating Lender in respect of the Junior Debt; (ii)
make any accrued or regularly scheduled payments of principal or
interest, or any prepayments or payments upon acceleration or demand in
respect of the Junior Debt; (iii) without Senior Lender's prior written
consent, execute or deliver any negotiable instruments as evidence of
the Junior Debt; or (iv) give Subordinating Lender any additional
collateral as security for payment of the Junior Debt. Notwithstanding
the foregoing, Borrower may pay interest on the Junior Debt and
following receipt by Senior Lender of audited financial statements of
Borrower for the Borrower's 1997 fiscal year in form and substance
satisfactory to Senior Lender, and for each year thereafter, Borrower
may make payments of principal to Dell in respect of her pro rata
interest in the Junior Note up to a maximum aggregate amount of $100,000
and an aggregate per annum amount equal to the lesser of (i) $50,000 or
(ii) 25% of Adjusted Cash Flow; provided, however, that after giving
effect to any such payments, no default, event of default or unmatured
event of default by Borrower under any present or future instrument or
agreement between Borrower and Senior Lender (including any Event of
Default under the Senior Loan Agreement between
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Borrower and Senior Lender) shall have occurred, and Borrower shall have
Excess Availability of $500,000 or more. Dell may not receive any such
payments until Senior Lender provides prior written confirmation that
all of the above conditions have been met. Other than as set forth
herein, in no event may Borrower pay, nor may Subordinating Lender
receive and retain, any payments, prepayments or accelerated payments of
principal in respect of the Junior Debt. For purposes of this Section
3(c), "Adjusted Cash Flow" shall mean, in respect of Borrower, net
income plus depreciation and amortization less capital expenditures less
principal payments on all Indebtedness (other than ordinary course
payments on revolving loans).
c. Priority of Interests in Collateral. Subordinating Lender hereby
subordinates any security interest, lien, or other right or interest (if any) it
now has or may hereafter acquire in the Collateral, including, without
limitation, the liens evidenced by the Junior Deed of Trust, to any security
interest, lien, or other right or interest Senior Lender now has or may
hereafter acquire in the Collateral, including, without limitation, the liens on
the Property evidenced by the Senior Deed of Trust. The subordination provided
in this Section 3(c) shall apply irrespective of the time or order of attachment
or the time, order or manner of perfection of any security interest, or the time
or order of filing of any deed of trust, financing statement or other documents
or instruments, and irrespective of any statute, rule, law, or court decision to
the contrary. The only lien Subordinating Lender possesses or shall possess on
the assets of Borrower is the lien, pursuant to the Junior Deed of Trust, on the
Property, and such lien is subject, junior, and subordinate to Senior Lender's
lien on Borrower's assets including the Property. Subordinating Lender shall not
attempt to avoid any lien securing the Senior Debt of Senior Lender in
connection with any bankruptcy proceeding against Borrower. This Agreement will
be filed of record in the official real
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property records of Dallas County, Texas, and if Senior Lender so
chooses, a copy may also be filed in the applicable UCC records.
4. Restrictions on Subordinating Lender's Actions. Unless it
shall have obtained Senior Lender's prior written consent, until the
Senior Debt has been indefeasibly paid in full, Subordinating Lender
will not: (i) demand or accept any payment upon the Junior Debt, except
as may be permitted by this Agreement; (ii) foreclose or realize upon
any collateral securing the Junior Debt (whether such collateral
constitutes part of the Collateral or consists of other assets of
Borrower), or otherwise enforce any security agreement, mortgage, lien
instrument, or other encumbrance securing the Junior Debt, including,
without limitation, the Junior Deed of Trust; or (iii) commence,
prosecute, or participate in any administrative, legal, or equitable
action that in Senior Lender's judgment might adversely affect
Borrower's business or Borrower's ability to pay the Senior Debt.
5. Remedies. If Borrower or Subordinating Lender attempts to
violate Section 3(b) or Clause (i) of Section 4, or if Subordinating
Lender in any other manner receives any funds which by virtue of this
Agreement it is precluded from receiving, Subordinating Lender shall be
deemed to hold any payment or distribution it receives in trust for
Senior Lender's benefit. In such case, Subordinating Lender shall
immediately remit such payment or distribution to Senior Lender. If
Subordinating Lender attempts to violate Clause (ii) of Section 4,
Senior Lender (in Senior Lender's or Borrower's name) or Borrower may
seek injunctive or other equitable relief to prevent or stop
Subordinating Lender's actions, it being agreed that legal remedies may
be inadequate. If Subordinating Lender attempts to violate Clause (iii)
of Section 4, Borrower may interpose as a defense or plea the making of
this Agreement, and Senior Lender may intervene and interpose such
defense or plea in its own
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or Borrower's name. The remedies provided in this Section 5 are not
exclusive; Senior Lender shall be entitled to all other remedies
available at law or in equity.
6. No Action to Violate Senior Lender Agreements. Subordinating
Lender shall not take any action which in Senior Lender's judgment might
cause Borrower to violate the Senior Loan Agreement or any other
agreement between Borrower and Senior Lender.
7. No Amendment of Junior Debt Documents. Except as otherwise
provided in this Agreement, unless Senior Lender's prior written consent
shall have been obtained, no Junior Debt Document, including but not
limited to the Junior Note and the Junior Deed of Trust, may be amended
or modified.
8. Extensions, Compromises, etc. Without having to obtain either
Borrower's or Subordinating Lender's consent, Senior Lender may grant to
Borrower extensions of the time of payment or performance, and may enter
into compromises (including releases of collateral and settlements) with
Borrower with respect to the Senior Debt.
9. Waiver. Subordinating Lender waives any right it may now or
hereafter have to require Senior Lender to ▇▇▇▇▇▇▇▇ assets, to exercise
rights or remedies in a particular manner, or to forbear from exercising
such rights and remedies in any particular manner or order.
10. No Constraint on Senior Lender. Nothing contained in this
Agreement shall preclude Senior Lender from discontinuing its extension
of credit to Borrower (whether under the Senior Loan Agreement or
otherwise) or from taking (without notice to Subordinating Lender,
Borrower, or any other Person) any other action in respect of the Senior
Debt or the Collateral which Senior Lender is otherwise entitled to take
with respect to the Senior Debt or the Collateral. Among the actions
which Lender may take in accordance with this Section 10 are: renewing,
extending, and increasing the amount of the
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Senior Debt; otherwise changing the terms of the Senior Debt; settling,
releasing, compromising, and collecting on the Senior Debt; making (and
refraining from making) other secured and unsecured loans and advances
to Borrower; amending any present or future agreement between Senior
Lender and Borrower; and all other actions which Senior Lender deems
advisable.
11. Impact of Bankruptcy. If a voluntary or involuntary
bankruptcy petition shall be filed respecting Borrower: (a) this
Agreement (including the subordination provisions contained in Section
3) shall continue in full force and effect; (b) Subordinating Lender
shall take no action in the bankruptcy proceeding which might (in Senior
Lender's opinion) adversely affect Senior Lender's rights and interests
respecting the Senior Debt; and (c) Subordinating Lender shall take all
actions reasonably requested by Senior Lender to protect Senior Lender's
interests during the course of such bankruptcy proceedings.
Subordinating Lender irrevocably authorizes Senior Lender or any person
Senior Lender may designate to collect and receive all amounts payable
on the Junior Debt and to file and prove claims therefor in the name of
Subordinating Lender or in Senior Lender's own name in bankruptcies,
receiverships and other similar proceedings. All such amounts, less
Senior Lender's reasonable expenses in connection therewith, shall be
applied to the payment of the Obligations which Borrower owes Senior
Lender, and any excess shall be paid over to Subordinating Lender.
12. Casualty Insurance; Condemnation Proceeds. The priorities
between Senior Lender and Subordinating Lender set forth herein shall
govern the ultimate disposition of casualty insurance and condemnation
proceeds. Senior Lender shall, subject to Borrower's rights under its
agreement with Senior Lender, have the sole and exclusive right, as
against Subordinating Lender, to adjust settlement of insurance claims
in the event of any covered
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loss, theft or destruction of Borrower's assets or to negotiate with
condemning authorities the settlement of any condemnation proceedings.
All proceeds of such insurance shall inure to Senior Lender as named in
any applicable loss payable endorsement, and Subordinating Lender shall
cooperate (if necessary) in a reasonable manner in effecting the payment
of Insurance proceeds to Senior Lender. All condemnation proceeds shall
inure to Senior Lender. After the Senior Debt is paid in full,
Subordinating Lender shall be entitled to any may enforce its rights (if
any) relating to the insurance proceeds and condemnation proceeds and
Senior Lender will pay over to Subordinating Lender any sums it had
received in excess of the Senior Debt.
13. Miscellaneous.
a. Amendment. No amendment or waiver of this Agreement
shall be effective unless in a writing signed by each party hereto.
b. Binding Effect; Governing Law; Venue. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of
California. All actions and proceedings arising in connection with this
Agreement shall be tried and litigated only in state or federal courts
located in Los Angeles County, State of California, or (at Senior
Lender's sole option) in any other court in which Senior Lender may
initiate legal or equitable proceedings, so long as such court has
subject matter jurisdiction. SUBORDINATING LENDER, SENIOR LENDER AND
BORROWER EACH WAIVES THE RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION, OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT, WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND ANY RIGHT EITHER MAY HAVE TO ASSERT
THE DOCTRINE OF FORUM NON CONVENIENS, LACK OF PERSONAL
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JURISDICTION, OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS
BROUGHT IN ACCORDANCE WITH THIS SECTION 13.b.
c. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one agreement.
d. Headings. The headings contained in this Agreement are
for convenience only. They shall not affect the interpretation of this
Agreement.
e. Attorneys' Fees; etc. In any suit or action brought to
enforce this Agreement or to obtain an adjudication (declaratory or
otherwise) of rights or obligations hereunder, the losing party shall
pay to the prevailing party reasonable attorneys' fees and other costs
and expenses incurred by the prevailing party.
f. Severability. Any provision of this Agreement that is
prohibited by law or unenforceable in any jurisdiction shall be
ineffective in that jurisdiction to the extent of such prohibition or
unenforceability, without invalidating the remaining provisions hereof
or affecting the validity or enforceability of such provision in any
other jurisdiction. To the extent permissible, the parties waive any
law that renders this Agreement prohibited or unenforceable.
g. Entire Agreement. This Agreement constitutes the entire
agreement between and among the parties regarding the subject matter
hereof. This Agreement supersedes all prior and contemporaneous
agreements between or among the parties with respect to the subject
matter hereof.
h. Notice. All notices or demands by any party hereunder
must be in writing and personally delivered or sent by registered or
certified mail, postage prepaid, return receipt requested, or by prepaid
telex, facsimile, telecopy, telegram (with messenger delivery
specified), or other method of electronic communication as follows:
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Senior Lender: Foothill Capital Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Subordinating Lender: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Dell ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇ & Holland LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Borrower: ▇▇▇▇▇▇▇▇▇ Industries, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇ & Holland LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The parties may change the address at which they receive notice, by giving
notice to each other in the foregoing manner. Notices or demands sent in
accordance with this Section shall be deemed to be received on the earlier of
the date of actual receipt or five (5) calendar days after deposit in the
United States mail.
i. Termination. This Agreement shall continue in full force and effect
until the Senior Debt has been indefeasibly paid in full by Borrower.
j. Neither Senior Lender nor Subordinating Lender, nor any of their
respective directors, officers, agents or employees, shall be responsible to
the other or to any
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person for (i) Borrower's solvency, financial condition or ability to
repay its indebtedness, (ii) any oral or written statement of Borrower,
or (iii) the validity or enforceability or such indebtedness, any
promissory note, mortgage, security agreement or the security interests
and liens granted by Borrower to Senior Lender or Subordinating Lender.
Both Senior Lender and Subordinating Lender have entered into their
respective financing arrangements with Borrower based upon independent
investigation, and neither Senior Lender nor Subordinating Lender makes
any warranty or representation to the other, nor relies upon any
warranty or representation of the other.
k. Rules of Construction. As used in this Agreement, the
singular includes the plural; the plural includes the singular.
References to one gender include all genders. Unless otherwise
specified, references to Sections, Exhibits and parties refer to
Sections, Exhibits and parties of or to this Agreement. The words
"include," "including," and similar words are not intended to be
limiting.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers, as of the date
first above written.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ DELL ▇▇▇▇▇▇▇▇▇
------------------------------------
DELL ▇▇▇▇▇▇▇▇▇
FOOTHILL CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: SVP
------------------------------
15
19
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
================================================================================
STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )
On August 16, 1996 before me, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Notary Public, personally
appeared ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
[ ] personally known to me - OR - [x] proved to me on the basis of
satisfactory evidence to be the
person whose name is subscribed to
[NOTARY STAMP] the within instrument and
acknowledged to me that he executed
the same in his authorized capacity,
and that by his signature on the
instrument the person, or the entity
upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
SIGNATURE OF NOTARY
====================================OPTIONAL====================================
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[ ] INDIVIDUAL
[ ] CORPORATE OFFICER(S)
------------------------------------- ------------------------------------
TITLE(S) TITLE OR TYPE OF DOCUMENT
[ ] PARTNER(S) [ ] LIMITED
[ ] GENERAL ------------------------------------
NUMBER OF PAGES
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] GUARDIAN/CONSERVATOR ------------------------------------
DATE OF DOCUMENT
[ ] OTHER:
------------------------------------- ------------------------------------
SIGNER IS REPRESENTING: SIGNER(S) OTHER THAN NAMED ABOVE
(NAME OF PERSON(S) OR ENTITY(IES))
-------------------------------------
================================================================================
20
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
================================================================================
STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )
On August 16, 1996 before me, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Notary Public, personally
appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
[ ] personally known to me - OR - [x] proved to me on the basis of
satisfactory evidence to be the
person whose name is subscribed to
[NOTARY STAMP] the within instrument and
acknowledged to me that she executed
the same in his authorized capacity,
and that by his signature on the
instrument the person, or the entity
upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
SIGNATURE OF NOTARY
====================================OPTIONAL====================================
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[ ] INDIVIDUAL
[ ] CORPORATE OFFICER(S)
------------------------------------- ------------------------------------
TITLE(S) TITLE OR TYPE OF DOCUMENT
[ ] PARTNER(S) [ ] LIMITED
[ ] GENERAL ------------------------------------
NUMBER OF PAGES
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] GUARDIAN/CONSERVATOR ------------------------------------
DATE OF DOCUMENT
[ ] OTHER:
------------------------------------- ------------------------------------
SIGNER IS REPRESENTING: SIGNER(S) OTHER THAN NAMED ABOVE
(NAME OF PERSON(S) OR ENTITY(IES))
-------------------------------------
================================================================================
21
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
================================================================================
STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )
On August 16, 1996 before me, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Notary Public, personally
appeared ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
[ ] personally known to me - OR - [x] proved to me on the basis of
satisfactory evidence to be the
person whose name is subscribed to
[NOTARY STAMP] the within instrument and
acknowledged to me that she executed
the same in her authorized capacity,
and that by her signature on the
instrument the person, or the entity
upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
SIGNATURE OF NOTARY
====================================OPTIONAL====================================
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[ ] INDIVIDUAL
[ ] CORPORATE OFFICER(S)
------------------------------------- ------------------------------------
TITLE(S) TITLE OR TYPE OF DOCUMENT
[ ] PARTNER(S) [ ] LIMITED
[ ] GENERAL ------------------------------------
NUMBER OF PAGES
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] GUARDIAN/CONSERVATOR ------------------------------------
DATE OF DOCUMENT
[ ] OTHER:
------------------------------------- ------------------------------------
SIGNER IS REPRESENTING: SIGNER(S) OTHER THAN NAMED ABOVE
(NAME OF PERSON(S) OR ENTITY(IES))
-------------------------------------
================================================================================
22
BORROWER'S ACKNOWLEDGMENT
The undersigned Borrower hereby approves of, and agrees and consents to,
the foregoing Subordination Agreement, dated as of even date by and among ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, an individual residing in the State of Texas, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
an individual residing in the State of Texas, and Dell ▇▇▇▇▇▇▇▇▇, an individual
residing in the State of Texas, and Foothill Capital Corporation, a California
corporation (the "Subordination Agreement"). Unless otherwise defined in this
Acknowledgment, terms defined in the Subordination Agreement have the same
meanings when used in this Acknowledgment.
Borrower agrees to be bound by the Subordination Agreement, and agrees
that any default, event of default, or unmatured event of default by Borrower
under any present or future instrument or agreement between Borrower and
Subordinating Lender shall constitute an immediate default, event of default,
and unmatured event of default under all present and future instruments and
agreements between Borrower and Senior Lender. Borrower agrees that the
Subordination Agreement may be amended by Senior Lender and Subordinating
Lender without notice to, or the consent of, Borrower.
▇▇▇▇▇▇▇▇▇ INDUSTRIES, L.P.
By: ▇▇▇▇▇▇▇▇▇ Operating Corp.,
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice Chairman
-------------------------------
▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: President
-------------------------------
NBF, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Chairman
-------------------------------
16
23
SCHEDULE I
BEING a tract of land out of the ▇.▇. Read Survey, Abstract No. 1182, in the
City of Irving, Dallas County, Texas, described by metes and bounds as follows:
BEGINNING at a point at the intersection of the South line of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇ with the West line of ▇▇▇▇▇ Drive (a 50 feet wide street);
THENCE South 00 degrees 34 minutes 42 seconds West along said West line of
▇▇▇▇▇ Drive, for a distance of 413.48 feet to a point for corner;
THENCE North 89 degrees 38 minutes 02 seconds West for a distance of 174.83
feet to a point for corner;
THENCE North 00 degrees 28 minutes 38 seconds East for a distance of 413.48
feet to a point in the South line of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇ for corner;
THENCE South 89 degrees 38 minutes 00 seconds East along said ▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇, for a distance of 175.56 feet to the PLACE OF BEGINNING.
17
24
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers, as of the date
first above written.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ DELL ▇▇▇▇▇▇▇▇▇
------------------------------------
DELL ▇▇▇▇▇▇▇▇▇
FOOTHILL CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: SVP
------------------------------
15
25
ACKNOWLEDGEMENT
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me on the 19 day of August,
1996, by Dell ▇▇▇▇▇▇▇▇▇.
/s/ ▇▇▇ ▇▇▇▇▇▇
[NOTARY SEAL] ------------------------------------
Notary Public, State of Texas
Notary name (printed):
Notary's commission expires: 3-15-97
AFTER RECORDING RETURN TO:
Chicago Title Insurance Company
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
