Exhibit 10.46
SUBORDINATION AGREEMENT
This Subordination Agreement (this "Agreement") dated as of May 9, 2003
among Equinox Business Credit Corp. ("Senior Lender"), Ventures-National
Incorporated ("Subordinated Lender") and Titan PCB East, Inc. ("Company").
BACKGROUND
As an inducement for Senior Lender to provide a credit facility in
favor of Company, Subordinated Lender has agreed to enter into this Agreement to
provide for the subordination of the "Subordinated Indebtedness" to the "Senior
Indebtedness".
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) General Terms. For purposes of this Agreement, the following terms
shall have the following meanings:
"Business Day" shall have the meaning set forth in the Loan
Agreement as in effect on the Closing Date.
"Company" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Creditor Agreements" shall mean, collectively, the Senior
Lending Agreements and the Subordinated Lending Agreements.
"Creditors" shall mean, collectively, Senior Lender and
Subordinated Lender and their respective successors and assigns.
"Default" shall have the meaning set forth in the Loan
Agreement.
"Distribution" shall mean any payment, whether in cash, in
kind, securities or any other property, or security for any such Distribution.
"Documents" shall have the meaning given to the term
"Ancillary Agreements" in the Loan Agreement.
"Event" shall have the meaning set forth in Section 2(b)(iii)
hereof.
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"Holder of Subordinated Indebtedness" or "Subordinated Lender"
shall mean Ventures-National Incorporated, and any other Person(s) at any time
or in any manner acquiring any right or interest in any of the Subordinated
Indebtedness, and any successor and assigns of such Person.
"Loan Agreement" shall mean the Loan and Security Agreement
dated as of May 9, 2003 between Company and Senior Lender as the same may be
amended, supplemented, modified or restated from time to time.
"Person" shall mean an individual, a partnership, a
corporation (including a business trust), a joint stock company, a trust, an
unincorporated association, a joint venture, a limited liability company, a
limited liability partnership or other entity, or a government or any agency,
instrumentality or political subdivision thereof.
"Senior Indebtedness" shall mean all Obligations of any kind
owed by Company to Senior Lender from time to time under or pursuant to any of
the Senior Lending Agreements including, without limitation, all principal,
interest accruing thereon, charges, expenses, fees and other sums (including all
interest, charges, expenses, fees and other sums accruing after commencement of
any case, proceeding or other action relating to the bankruptcy, insolvency or
reorganization of Company) chargeable to Company by Senior Lender, and
reimbursement, indemnity or other obligations due and payable to Senior Lender.
Senior Indebtedness shall continue to constitute Senior Indebtedness,
notwithstanding the fact that such Senior Indebtedness or any claim for such
Senior Indebtedness is subordinated, avoided or disallowed under the federal
Bankruptcy Code or other applicable law. Senior Indebtedness shall also include
any indebtedness of Company incurred in connection with a refinancing of the
Senior Indebtedness under the Senior Lending Agreements if the terms and
conditions of the agreements, documents and instruments related to such
refinancing, taken as a whole, are not materially more onerous to the Holder of
Subordinated Indebtedness than those set forth in the Senior Lending Agreements,
as in effect on the date hereof.
"Senior Lender" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Senior Lending Agreements" shall mean collectively the Loan
Agreement and the other Documents, each as from time to time in effect.
"Subordinated Indebtedness" shall mean all principal, interest
and other amounts payable or chargeable in connection with the Subordinated
Lending Agreements.
"Subordinated Lending Agreements" shall mean, collectively,
the Subordinated Letter Agreement and all promissory notes, agreements,
documents and instruments now or at any time hereafter executed and/or delivered
by Company or any other person to, with or in favor of Subordinated Lender in
connection therewith or related thereto, as all of the foregoing now exist or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
"Subordinated Letter Agreement" shall mean the letter
agreement executed and delivered by Company to Subordinated Lender pursuant to
which Company acknowledges that the aggregate amount of indebtedness Company
owes to Subordinated Lender as of April 27, 2003 is $225,490.47.
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(b) Other Terms. Capitalized terms not otherwise defined
herein shall have the meanings given to them in the Loan Agreement.
(c) Certain Matters of Construction. The terms "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular section, paragraph or
subdivision. Any pronoun used shall be deemed to cover all genders. Wherever
appropriate in the context, terms used herein in the singular also include the
plural and vice versa. All references to statutes and related regulations shall
include any amendments of same and any successor statutes and regulations.
Except as expressly set forth herein, all references to any instruments or
agreements, including, without limitation, references to any of Creditor
Agreements shall include any and all modifications or amendments thereto and any
and all extensions or renewals thereof.
2. Covenants. Company and each Holder of Subordinated Indebtedness
hereby covenant that until the Senior Indebtedness shall have been paid in full
and satisfied in cash and the Loan Agreement shall have been irrevocably
terminated, all in accordance with the terms of the Loan Agreement, each will
comply with such of the following provisions as are applicable to it:
(a) Transfers. Each Holder of Subordinated Indebtedness
covenants that any transferee from it of any Subordinated Indebtedness shall,
prior to acquiring such interest, execute and deliver a counterpart of this
Agreement to each other party hereto.
(b) Subordination Provisions. To induce Senior Lender to enter
into the Loan Agreement and to make loans and advances thereunder,
notwithstanding any other provision of the Subordinated Indebtedness to the
contrary, any Distribution with respect to the Subordinated Indebtedness is and
shall be expressly junior and subordinated in right of payment to all amounts
due and owing upon all Senior Indebtedness outstanding from time to time.
Specifically, but not by way of limitation:
(i) Payments. Company shall make no Distribution on the
Subordinated Indebtedness until such time as the Senior Indebtedness shall have
been paid in full in cash and the Loan Agreement shall have been irrevocably
terminated.
[(ii) Limitation on Acceleration. No Holder of Subordinated
Indebtedness shall be entitled to accelerate the maturity of the Subordinated
Indebtedness, exercise any remedies or commence any action or proceeding to
recover any amounts due or to become due with respect to Subordinated
Indebtedness.
(iii) Prior Payment of Senior Indebtedness in Bankruptcy, etc.
In the event of any insolvency or bankruptcy proceedings relative to Company or
its property, or any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, or, in the event of any proceedings for
voluntary liquidation, dissolution or other winding up of Company or
distribution or marshalling of its assets or any composition with creditors of
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Company, whether or not involving insolvency or bankruptcy, or if Company shall
cease its operations, call a meeting of its creditors or no longer do business
as a going concern (each individually or collectively, an "Event"), then all
Senior Indebtedness shall be paid in full and satisfied in cash and the Loan
Agreement irrevocably terminated before any Distribution shall be made on
account of any Subordinated Indebtedness. Any such Distribution which would, but
for the provisions hereof, be payable or deliverable in respect of the
Subordinated Indebtedness, shall be paid or delivered directly to Senior Lender
or its representatives, in the proportions in which they hold the same, until
amounts owing upon Senior Indebtedness shall have been paid in full in cash and
the Loan Agreement irrevocably terminated.
(iv) Power of Attorney. To enable Senior Lender to assert and enforce
its rights hereunder in any proceeding referred to in Section 2(b)(iii) or upon
the happening of any Event, Senior Lender or any person whom it may designate is
hereby irrevocably appointed attorney in fact for Subordinated Lender with full
power to act in the place and stead of Subordinated Lender including the right
to make, present, file and vote such proofs of claim against Company on account
of all or any part of the Subordinated Indebtedness as Senior Lender may deem
advisable and to receive and collect any and all dividends or other payments
made thereon and to apply the same on account of the Senior Indebtedness.
Subordinated Lender will execute and deliver to Senior Lender such instruments
as may be required by Senior Lender to enforce any and all Subordinated
Indebtedness, to effectuate the aforesaid power of attorney and to effect
collection of any and all dividends or other payments which may be made at any
time on account thereof, and Subordinated Lender hereby irrevocably appoints
Senior Lender as the lawful attorney and agent of Subordinated Lender to execute
financing statements on behalf of Subordinated Lender and hereby further
authorizes Senior Lender to file such financing statements in any appropriate
public office.
(v) Payments Held in Trust. Should any Distribution or the proceeds
thereof, in respect of the Subordinated Indebtedness, be collected or received
by Subordinated Lender or any Affiliate (as such term is defined in Rule 405 of
Regulation C adopted by the Securities and Exchange Commission pursuant to the
Securities Act of 1933) of Subordinated Lender at a time when Subordinated
Lender is not permitted to receive any such Distribution or proceeds thereof
including if same is collected or received when there is or would be after
giving effect to such payment a Default or an Event of Default under the Loan
Agreement, then Subordinated Lender will forthwith deliver, or cause to be
delivered, the same to Senior Lender in precisely the form held by Subordinated
Lender (except for any necessary endorsement) and until so delivered, the same
shall be held in trust by Subordinated Lender, or any such Affiliate, as the
property of Senior Lender and shall not be commingled with other property of the
Subordinated Lender or any such Affiliate.
(vi) Subrogation. Subject to the prior payment in full in cash of the
Senior Indebtedness and the irrevocable termination of the Loan Agreement, to
the extent that Senior Lender has received any Distribution on the Senior
Indebtedness which, but for this Agreement, would have been applied to the
Subordinated Indebtedness, Subordinated Lender shall be subrogated to the then
or thereafter rights of Senior Lender including, without limitation, the right
to receive any Distribution made on the Senior Indebtedness until the principal
of, interest on and other charges due under the Subordinated Indebtedness shall
be paid in full; and,
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for the purposes of such subrogation, no Distribution to Senior Lender to which
Subordinated Lender would be entitled except for the provisions of this
Agreement shall, as between Company, its creditors (other than Senior Lender)
and Subordinated Lender, be deemed to be a Distribution by Company to or on
account of Senior Indebtedness, it being understood that the provisions hereof
are and are intended solely for the purpose of defining the relative rights of
Subordinated Lender on the one hand, and Senior Lender on the other hand.
(vii) Scope of Subordination. The provisions of this Agreement
are solely to define the relative rights of any Holder of Subordinated
Indebtedness and Senior Lender. Nothing in this Agreement shall impair, as
between Company and Subordinated Lender the unconditional and absolute
obligation of Company to punctually pay the principal, interest and any other
amounts and obligations owing under the Subordinated Lending Agreements in
accordance with the terms thereof, subject to the rights of Senior Lender under
this Agreement.
3. Miscellaneous.
(a) Provisions of Subordinated Lending Agreements. From and after the
date hereof, Company and Subordinated Lender shall cause each Subordinated
Lending Agreement to contain a provision to the following effect:
"This Agreement is subject to the Subordination Agreement, dated as of
May __, 2003, among the Maker, the Payee and Senior Lender, under which
this Note and the Maker's obligations hereunder are subordinated in the
manner set forth therein to the prior payment of certain obligations to
the holders of Senior Indebtedness as defined therein."
Proof of compliance with the foregoing shall be promptly given to
Senior Lender.
(b) Additional Agreements. In the event that the Senior Indebtedness is
refinanced in full, Subordinated Lender agrees at the request of such
refinancing party to enter into a subordination agreement on terms substantially
similar to this Agreement.
(c) Survival of Rights. The right of Senior Lender to enforce the
provisions of this Agreement shall not be prejudiced or impaired by any act or
omitted act of Company or Senior Lender including forbearance, waiver, consent,
compromise, amendment, extension, renewal, or taking or release of security in
respect of any Senior Indebtedness or noncompliance by Company with such
provisions, regardless of the actual or imputed knowledge of Senior Lender.
(d) Bankruptcy Financing Issues. (i) (i) This Agreement shall continue
in full force and effect after the filing of any petition ("Petition") by or
against Company under the United States Bankruptcy Code (the "Code") and all
converted or succeeding cases in respect thereof. All references herein to
Company shall be deemed to apply to Company as debtor-in-possession and to a
trustee for Company. If Company shall become subject to a proceeding under the
Code, and if Senior Lender shall desire to permit the use of cash collateral or
to provide post-Petition financing from Senior Lender to Company under the Code,
Subordinated
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Lender agrees as follows: (1) adequate notice to Subordinated Lender shall be
deemed to have been provided for such consent or post-Petition financing if
Subordinated Lender receives notice thereof three (3) Business Days (or such
shorter notice as is given to Senior Lender) prior to the earlier of (a) any
hearing on a request to approve such post-petition financing or (b) the date of
entry of an order approving same and (2) no objection will be raised by
Subordinated Lender to (a) any such use of cash collateral or such post-Petition
financing from Senior Lender and (b) Senior Lender declaring a default and/or
exercising all of its rights and remedies in accordance with any agreement
evidencing such post-Petition financing from Senior Lender.
(ii) Subordinated Lender shall not join in, solicit any other
person to, or act to cause the commencement of, any case involving Company under
any state or federal bankruptcy or insolvency laws or seek the appointment of a
receiver for the affairs or property of Company until such time as the Senior
Indebtedness shall have been paid in full in cash and the Senior Lending
Agreements shall have been irrevocably terminated.
(e) Receipt of Agreements; Consents and Waiver of Defaults.
Subordinated Lender hereby acknowledges that it has delivered to Senior Lender a
correct and complete copy of the Subordinated Lending Agreements as in effect on
the date hereof. Subordinated Lender, solely for the purposes of this Agreement,
hereby acknowledges receipt of a correct and complete copy of each of the Senior
Lending Agreements as in effect on the date hereof, consents to Company entering
into the Senior Lending Agreements and waives any default or event of default
under the Subordinating Lending Agreement as a result of Company entering into
such Senior Lending Agreements.
(f) No Amendment of Subordinated Lending Agreements. So long as the
Loan Agreement remains in effect, neither Company nor any Holder of Subordinated
Indebtedness shall enter into any amendment to or modification of any
Subordinated Lending Agreements which relates to or affects the principal
amount, interest rate, payment terms, or any other material covenant or
agreement of Company thereunder or in respect thereof, without the prior written
consent of Senior Lender.
(g) Amendments to Senior Lending Agreements. Nothing contained in this
Agreement, or in any other agreement or instrument binding upon any of the
parties hereto, shall in any manner limit or restrict the ability of Senior
Lender from increasing or changing the terms of the loans under the Senior
Lending Agreements, or to otherwise waive, amend or modify the terms and
conditions of the Senior Lending Agreements, in such manner as Senior Lender and
Company shall mutually determine. Each Holder of Subordinated Indebtedness
hereby consents to any and all such waivers, amendments, modifications and
compromises, and any other renewals, extensions, indulgences, releases of
collateral or other accommodations granted by Senior Lender to Company from time
to time, and agrees that none of such actions shall in any manner affect or
impair the subordination established by this Subordination Agreement in respect
of the Subordinated Indebtedness.
(h) Notice of Default and Certain Events. Senior Lender and the Holders
of Subordinated Indebtedness shall undertake in good faith to notify the other
of the occurrence of any of the following as applicable:
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(i) the obtaining of actual knowledge of the occurrence of any
default under any of the Subordinated Lending Agreements;
(ii) the acceleration of any Senior Indebtedness by Senior
Lender or of any Subordinated Indebtedness by any Holder of Subordinated
Indebtedness;
(iii) the granting by Senior Lender of any waiver of any Event
of Default under the Loan Agreement or the granting by any Holder of
Subordinated Indebtedness of any waiver of any "default" or "event of default"
under the Subordinated Lending Agreements; or
(iv) the payment in full by Company (whether as a result of
refinancing or otherwise) of all Senior Indebtedness.
The failure of any party to give such notice shall not affect
the subordination of the Subordinated Indebtedness as provided in this
Agreement. (i) Notices. Any notice or other communication required or permitted
pursuant to this Agreement shall be deemed given (a) when personally delivered
to any officer of the party to whom it is addressed, (b) on the earlier of
actual receipt thereof or three (3) days following posting thereof by certified
or registered mail, postage prepaid, or (c) upon actual receipt thereof when
sent by a recognized overnight delivery service or (d) upon actual receipt
thereof when sent by telecopier to the number set forth below with electronic
confirmation of receipt, in each case addressed to each party at its address or
telecopier number set forth below or at such other address or telecopier number
as has been furnished in writing by a party to the other by like notice:
If to Senior Lender: Equinox Business Credit Corp.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Subordinated
Lender: Ventures-National Incorporated
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Company: Titan PCB East, Inc.
0 Xxxxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx, O'Xxxxxxx Xx Xxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(j) Books and Records. Subordinated Lender shall (a) make notations on
the books of Subordinated Lender beside all accounts or on other statements
evidencing or recording any Subordinated Indebtedness to the effect that such
Subordinated Indebtedness is subject to the provisions of this Agreement, (b)
furnish Senior Lender, upon request from time to time, a statement of the
account between Subordinated Lender and Company and (c) give Senior Lender, upon
its request, full and free access to Subordinated Lender's books pertaining only
to such accounts with the right to make copies thereof.
(k) Binding Effect; Other. This Agreement shall be a continuing
agreement, shall be binding upon and shall inure to the benefit of the parties
hereto from time to time and their respective successors and assigns, shall be
irrevocable and shall remain in full force and effect until the Senior
Indebtedness shall have been satisfied or paid in full in cash and the Loan
Agreement shall have been irrevocably terminated, but shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any amount paid by or on behalf of Company with regard to the
Senior Indebtedness is rescinded or must otherwise be restored or returned upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of
Company, or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee, custodian, or similar officer, for Company or any
substantial part of its property, or otherwise, all as though such payments had
not been made. No action which Senior Lender or Company may take or refrain from
taking with respect to the Senior Indebtedness, including any amendments
thereto, shall affect the provisions of this Agreement or the obligations of
Subordinated Lender hereunder. Any waiver or amendment hereunder must be
evidenced by a signed writing of the party to be bound thereby, and shall only
be effective in the specific instance. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey. The headings
in this Agreement are for convenience of reference only, and shall not alter or
otherwise affect the meaning hereof.
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(l) Security. Until the Senior Indebtedness shall have been paid in
full in cash and the Loan Agreement shall have been irrevocably terminated,
Subordinated Lender hereby disclaims any and all security interests, liens or
other encumbrances on or in any property (personal or real) of the Company.
(m) No Challenge to Validity, Etc. of Liens. Notwithstanding anything
to the contrary expressed or implied in this Agreement, each Holder of
Subordinated Indebtedness agrees that it will not at any time (a) challenge,
cooperate with a challenge or consent to a challenge to the validity,
perfection, priority or enforceability of any Liens (as defined in the Loan
Agreement as in effect on the Closing Date) on the Collateral (as defined in the
Loan Agreement), or the Agent's right to foreclosure, realization upon, levy
upon, or liquidation of any of the Collateral or (b) object to the Agent moving
during an Event for relief from the automatic stay imposed under Section 362 of
the Code.
(n) Defense to Enforcement. If any Holder of Subordinated Indebtedness,
in contravention of the terms of this Agreement, shall commence, prosecute or
participate in any suit, action or proceeding against the Company, then Senior
Lender may intervene and interpose such defense or pleas in its name. If any
Holder of Subordinated Indebtedness, in contravention of the terms of this
Agreement, shall attempt to collect any of the Subordinated Indebtedness or
enforce any of its right under any of the Subordinated Lending Agreements or
this Agreement, then Senior Lender may, by virtue of this Agreement, restrain
the enforcement thereof in the name of Senior Lender. If any Holder of
Subordinated Indebtedness, in contravention of the terms of this Agreement,
obtains any cash or other assets of the Company as a result of any
administrative, legal or equitable actions or otherwise, such Holder of
Subordinated Indebtedness agrees forthwith to pay, deliver and assign to Senior
Lender, with appropriate endorsements, any such cash or other assets for
application to Senior Indebtedness.
4. Representations and Warranties. Subordinated Lender represents and
warrants to Senior Lender that Subordinated Lender is the holder of the
Subordinated Indebtedness. Subordinated Lender agrees that it shall not assign
or transfer any of the Subordinated Indebtedness without (i) prior notice being
given to Senior Lender and (ii) such assignment or transfer being made expressly
subject to the terms of this Agreement. Subordinated Lender further warrants to
Senior Lender that it has full right, power and authority to enter into this
Agreement and, to the extent Subordinated Lender is an agent or trustee for
other parties, that this Agreement shall fully bind all such other parties.
5. Negative Covenants.
(a) Company shall not directly or indirectly xxxxx x Xxxx to
any Person in any of the Collateral to secure or satisfy all or any part of the
Subordinated Indebtedness without the prior written consent of Lender.
(b) No Subordinated Lender shall permit to exist any Lien on
any property or assets of any Company to secure or provide for payment or
performance of the Subordinated
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Indebtedness or exercise any right of set off or counterclaim which the
Subordinated Lender may have with respect to any amounts payable or to be paid
by the Subordinated Lender to Company. In the event that any Subordinated Lender
has or at any time acquires any Lien in the Collateral securing the Senior
Indebtedness, or any part thereof, each Subordinated Lender hereby waives any
right that it may have whether such right arises under Sections 9-611 through
9-614 of the Uniform Commercial Code or other applicable law, to receive notice
of the Lender's intended disposition of such Collateral (or a portion thereof)
or of the Lender's proposed retention of such assets in satisfaction of the
Senior Indebtedness (or a portion thereof). Each Subordinated Lender further
agrees that in the event Company consents or fails to object to a proposed
retention of such Collateral (or a portion thereof) by the Lender in
satisfaction of the Senior Indebtedness (or a portion thereof), such
Subordinated Lender hereby consents to such proposed retention regardless of
whether such Subordinated Lender is provided with notice of such proposed
retention.
6. Proceedings. ANY JUDICIAL PROCEEDING BROUGHT BY OR AGAINST
SUBORDINATED LENDER OR COMPANY WITH RESPECT TO THIS AGREEMENT OR ANY RELATED
AGREEMENT MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN STATE OF NEW
JERSEY, UNITED STATES OF AMERICA, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT EACH PARTY THERETO ACCEPTS FOR THEMSELVES AND IN CONNECTION WITH THEIR
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY FINAL JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. NOTHING HEREIN SHALL AFFECT
THE RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF SENIOR LENDER TO BRING PROCEEDINGS AGAINST SUBORDINATED LENDER OR
COMPANY IN ANY COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
SUBORDINATED LENDER OR COMPANY AGAINST SENIOR LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR
CONNECTED WITH THIS AGREEMENT OR ANY RELATED AGREEMENT, SHALL BE BROUGHT ONLY IN
A COURT LOCATED IN THE STATE OF NEW JERSEY; PROVIDED THAT NOTWITHSTANDING THE
FOREGOING, IF IN ANY JUDICIAL PROCEEDING BY OR AGAINST SUBORDINATED LENDER OR
COMPANY THAT IS BROUGHT IN ANY OTHER COURT SUCH COURT DETERMINES THAT SENIOR
LENDER IS AN INDISPENSABLE PARTY, SUBORDINATED LENDER OR COMPANY SHALL BE
ENTITLED TO JOIN OR INCLUDE EACH PARTY HERETO IN SUCH PROCEEDINGS IN SUCH OTHER
COURT. SUBORDINATED LENDER AND COMPANY WAIVE ANY OBJECTION TO JURISDICTION AND
VENUE OF ANY ACTION INSTITUTED HEREUNDER AND SHALL NOT ASSERT ANY DEFENSE BASED
ON LACK OF JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
7. Waiver Of Jury Trial. EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A)
ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN
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CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF ANY CREDITOR OR COMPANY OR ANY OF THEM WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENTS OR AGREEMENT EXECUTED OR DELIVERED
BY THEM IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE AND EACH PARTY HERETO HEREBY AGREES AND CONSENTS
THAT ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT JURY, AND THAT ANY OF THEM MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THEIR CONSENT TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
8. Company Acknowledgement. Company agrees that (i) nothing contained
in this Agreement shall be deemed to amend, modify, supercede or otherwise alter
the terms of the respective agreements between Company and each Creditor and
(ii) this Agreement is solely for the benefit of the Creditors and shall not
give Company, its successors or assigns or any other person any rights vis-a-vis
any Creditor.
9. Counterparts; Facsimile. This Agreement may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which when taken together 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.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the undersigned have entered into this Agreement as
of this ____ day of May, 2003.
EQUINOX BUSINESS CREDIT CORP.,
as Senior Lender
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
VENTURES-NATIONAL INCORPORATED,
as Subordinated Lender
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman
TITAN PCB EAST, INC.,
as Company
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: President
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STATE OF Wisconsin )
: ss.:
COUNTY OF Milwaukee )
On the 2nd day of May, 2003, before me personally came Xxxxx X. Xxxxx
to me known, who, being by me duly sworn did depose and say that s/he is the
Chairman of Ventures-National Incorporated, the corporation described in and
which executed the above instrument; and that s/he signed her/his name thereto
by order of the board of directors of said corporation.
P. Schloabe
--------------------------------
Notary Public
STATE OF ______________)
: ss.:
COUNTY OF ____________)
On the _______ day of May, 2003, before me personally came Xxxxx Xxxxx
to me known, who, being by me duly sworn did depose and say that he is the
________________ of Equinox Business Credit Corp., the corporation described in
and which executed the above instrument; and that he was authorized to sign his
name thereto.
--------------------------------
Notary Public
STATE OF Massachusetts)
: ss.:
COUNTY OF Worcestor)
On the 5th day of May, 2003, before me personally came Xxxxxx X. Xxxx
to me known, who, being by me duly sworn did depose and say that s/he is the
President of Titan PCB East, Inc., the corporation described in and which
executed the above instrument; and that s/he signed her/his name thereto by
order of the board of directors of said corporation.
/s/ Xxxx Xxxx
--------------------------------
Notary Public
