INTERCREDITOR AGREEMENT
This Intercreditor Agreement (the "Agreement") is made and entered into as
of this 27th day of August 1997, by and between Transamerica Business Credit
Corporation, having a place of business at 0000 Xxxx Xxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000 ("Transamerica"), and Sterling National Bank (formerly
known as Sterling National Bank & Trust Company of New York), having a place of
business at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Sterling"),
with reference to the following facts:
A. Sterling is a secured lender to Business Loan Center, Inc., a Delaware
corporation ("BLC"), BLC Financial Services, Inc., a Delaware corporation
("Parent"), and Business Loan Center, a New York general partnership
("Partnership," and collectively with BLC and Parent, the "Borrowers") pursuant
to that certain Revolving Credit Agreement dated as of December 19, 1994 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement") and that certain Security Agreement dated as of December 19,
1994 (as amended, restated, supplemented or otherwise modified from time to
time, the "Security Agreement").
B. Concurrently with the execution of this Agreement, Sterling and
Transamerica have entered into that certain Partial Assignment Agreement (the
"Partial Assignment Agreement"), pursuant to which Sterling is transferring and
assigning to Transamerica a portion of Sterling's interest in the "Revolving
Credit Loan," the "Obligations," the "Multi-Party Agreement, "the "Loan
Documents" and the "Collateral" (each as defined in the Credit Agreement), and
is delegating to Transamerica a portion of its "Commitment" (as defined in the
Credit Agreement) and all of its other duties with respect to the Revolving
Credit Loan, the Obligations, the Multi-Party Agreement, the Loan Documents and
the Collateral, in each instance with respect to the "Unguaranteed Portion" of
"Eligible SBA Loans" (each as defined in the Credit Agreement.
C. Also concurrently with the execution of this Agreement, Sterling is
amending and restating the Credit Agreement, and amending the Security Agreement
and certain of the other Loan Documents as to the portion of the Revolving
Credit Loan, the Obligations, the Multi-Party Agreement, the Loan Documents and
the Collateral not assigned to Transamerica under the Partial Assignment
Agreement (the "Sterling Retained Portion"), to provide for the continued
financing by Sterling of the "Guaranteed Portion" (as defined in the Credit
Agreement) of Eligible SBA Loans. (Such amended and restated agreements are
hereinafter referred to as the "Sterling Credit Agreement," the "Sterling
Security Agreement," and the "Sterling Loan Documents").
D. Also concurrently with the execution of this Agreement, Transamerica is
amending and restating the Credit Agreement, the Security Agreement, and the
other Loan Documents as to the portion of the Revolving Credit Loan, the
Obligations, the Multi-Party Agreement, the Loan Documents and the Collateral
assigned to Transamerica under the Partial Assignment Agreement (the
"Transamerica Assigned Portion"), to provide for the continued financing by
Transamerica of the Unguaranteed Portion of Eligible SBA Loans. (Such amended
and restated agreements are hereinafter referred to as the "Transamerica Loan
Agreement," the "Transamerica Security Agreement," and the "Transamerica Loan
Documents".)
X. Xxxxxxxx and Transamerica desire to avoid any possible conflict in the
priority of their respective security interests arising from the execution of
the Partial Assignment Agreement, the Sterling Loan Documents and the execution
of the Transamerica Loan Documents, and the continued borrowing by Borrowers
under both.
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Sterling and Transamerica do hereby agree as follows:
1. Definitions. All capitalized terms used herein and not defined herein
which are defined in the Sterling Credit Agreement shall have the same meaning
herein as in the Sterling Credit Agreement. As used herein, the following terms
shall have the following meanings:
1.1 "Proportionately" shall mean, with respect to the application or
allocation of collections on an Eligible SBA Loan,
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other than the proceeds of sales thereof, to Sterling and Transamerica in
proportion to the Guaranteed Portion and Unguaranteed Portion, respectively, of
such Eligible SBA Loan.
1.2 "Ratably" means, at any time, with respect to the application or
allocation of any payment or proceeds of any Collateral, to Sterling and
Transamerica in proportion to the Sterling Loans and the Transamerica Loans,
respectively, then outstanding.
1.3 "Sterling Loans" shall mean all liabilities and obligations,
including principal, interest, fees, and costs, now owed or hereafter owing by
Borrowers to Sterling under the terms of the Sterling Loan Documents.
1.4 "Transamerica Loans" shall mean all liabilities and obligations,
including principal, interest, fees, and costs, now owed or hereafter owing by
Borrowers to Transamerica under the terms of the Transamerica Loan Documents.
2. Priority of Liens and Security Interests; Application of Payments.
Notwithstanding any applicable law to the contrary, whether under the Uniform
Commercial Code or otherwise, from and after the date of this Agreement, the
following priorities and allocations shall apply to the Collateral and all
proceeds thereof:
2.1 All proceeds of sale of the Guaranteed Portion of Eligible SBA
Loans shall be paid and applied first to repayment of the Sterling Loans, and
second to repayment of the Transamerica Loans.
2.2 All proceeds of sale of any Unguaranteed Portion of Eligible SBA
Loans which were part of the Guaranteed Amount at the time that Sterling made an
advance but have subsequently become a part of the Unguaranteed Amount because
of the withdrawal of the guarantee of the SBA, shall be paid and applied first
to the repayment of the Sterling Loans, and second to the repayment of the
Transamerica Loan.
2.3 All proceeds of sale of the Unguaranteed Portion of Eligible SBA
Loans shall be paid and applied first to
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repayment of the Transamerica Loans, and second to repayment of the Sterling
Loans.
2.4 All other collections on account of Eligible SBA Loans, whether
from the obligors thereunder or otherwise, shall be paid and applied
Proportionately.
2.5 All proceeds and collections from any other Collateral shall be
paid and applied Ratably.
3. Mutual Consent to Liens and Security Interests. Sterling and
Transamerica each consents to the other's liens and security interests on the
Collateral under the Transamerica Loan Documents and the Sterling Loan
Documents, and agrees that the taking or granting of such liens and security
interests does not and will not constitute an event of default under the
Sterling Loan Documents and the Transamerica Loan Documents, respectively.
Sterling will take all steps reasonably requested by Transamerica, at the cost
of Borrowers or Transamerica, to maintain the perfection of their joint security
interests in the Collateral, including the filing of UCC amendments indicating
that Transamerica is also a secured party with respect thereto.
4. Termination. This Agreement shall remain in effect so long as the
Sterling Credit Agreement and the Transamerica Loan Agreement remain in effect;
provided, that no termination shall impair any rights or priorities that are
created or acquired hereunder by Sterling or Transamerica prior to such
termination. If the financing under the Sterling Credit Agreement is terminated
for any reason, if requested by Transamerica, Sterling will assign its rights
under the Sterling Loan Documents to Transamerica on substantially the same
terms and conditions as the assignment pursuant to the Partial Assignment
Agreement, unless the financing replacing that provided under the Sterling
Credit Agreement is provided by a person or entity other than Transamerica.
5. Successors and Assigns. This Agreement shall be binding on and inure to
the benefit of the successors and assigns of Sterling and Transamerica. The
benefits of this Agreement are
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solely for Sterling and Transamerica and are not for Borrowers or their related
parties and, in particular, Sterling and Transamerica may amend, terminate, or
modify this Agreement at any time or in any respect in writing and signed by
both parties without notice to or the consent of any of the Borrowers or their
related parties. This Agreement may not be enforced by or for the benefit of any
of Borrowers and in no way shall limit the liability or obligations of the
Borrowers to Sterling or Transamerica.
6. Copies of Agreements. If so requested by the other, Sterling and
Transamerica shall each furnish to the other complete and correct copies of the
Sterling Loan Documents and the Transamerica Loan Documents, respectively, as in
effect on the date of such request.
7. Amendment of Credit Agreements. Sterling and Transamerica shall not
amend or modify the Sterling Loan Documents or the Transamerica Loan Documents
without the prior written consent of the other, which consent shall not be
unreasonably withheld or delayed.
8. Notices to Borrowers. Sterling and Transamerica shall deliver to the
other copies of (i) any and all notices delivered to any of the Borrowers in
connection with any default or event of default by any Borrower that may cause
an acceleration of the Sterling Loans or the Transamerica Loans, or the
enforcement of any lien or security interest by Sterling or Transamerica in the
assets of any Borrower, and (ii) any and all notices delivered to any Borrower
in connection with the enforcement by Sterling or Transamerica of any lien or
security interest in the assets of any Borrower. Such notices shall be delivered
to Transamerica or Sterling, as the case may be, within five days of the date
such notices are delivered to any Borrower, but in no event less than three days
prior to the exercise of any remedies by such party against any Borrower as a
result of any such default or event of default.
9. Receipt of Funds or Collateral. The parties agree that
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should any of them receive any money from the sale, liquidation or the
disposition of, or as a result of its security interest in, any Collateral as to
which it does not hold pursuant to this Agreement a priority position at any
time prior to the payment in full of all the obligations owed by the Borrowers
to the party holding the first priority position, it will hold the same in trust
for the party holding the first priority position and promptly pay over the same
to the party holding a first priority position for application to the
obligations of the Borrowers owed to the party holding a first priority
position.
10. Bankruptcy Financing Issues. This Agreement shall be applicable before
and after filing of any petition by or against Borrowers under the United States
Bankruptcy Code or any other federal, state or other bankruptcy, moratorium or
other creditors' rights law and all converted or succeeding cases in respect
thereof, and all references herein to Borrowers shall be deemed to apply to a
trustee for Borrowers and Borrowers as debtor in possession and all proceeds of
Collateral between Sterling and Transamerica shall, subject to any court order
approving the financing of or use of cash collateral by Borrowers as debtor in
possession, continue to be applied after the filing thereof on the same basis
that such proceeds were to be applied prior to the date of the petition.
11. Subordination Limitation. The subordinations, agreements and
priorities set forth in this Agreement shall remain in full force and effect
regardless of whether any party hereto or in the future seeks to rescind, amend,
extend, terminate or reform, by liquidation or otherwise, its respective
agreements with the Borrowers. The parties agree that neither party shall
subordinate any security interest or any right to payment to any person without
the express prior written consent of the other party to this Agreement. The
foregoing is not intended to prohibit or restrict either party's ability to
enter into participation agreements for the respective loans to the Borrowers or
assign part or all of the respective loans and collateral as long as the rights
of such participants and holders are subject to the terms and the provisions of
this Agreement.
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12. Notices. All notices relating to this Agreement shall be sent by first
class certified mail, postage prepaid, and notice shall be deemed to have been
given upon receipt. Notices to Sterling shall be addressed as follows:
Sterling National Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxx
and to counsel at:
Xxxx Marks & Xxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx X. Xxxxxxxxxxx, Esq.
and notices to Transamerica shall be addressed as follows:
Transamerica Business Credit Corporation
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn.: Account Executive - BLC
and to counsel at:
Xxxxxx, Xxxx & Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Hill Xxxxxxxx, III, Esq.
or to such other person or at such other address as either party may from time
to time specify in writing.
13. Entire Agreement. This Agreement and the Partial Assignment Agreement
represent the final agreement between the parties with respect to the subject
matter hereof and may not be contradicted by evidence of prior, contemporaneous,
or subsequent oral agreements of the parties. There are no unwritten oral
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agreements between the parties.
14. APPLICABLE LAW; CONSENT TO JURISDICTION AND VENUE. THIS AGREEMENT WILL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF. The parties hereto
irrevocably agree that any suit, action or other proceeding arising out of this
Agreement shall be brought only in the courts of the State of New York or the
courts of the United States located within the State of New York, in each case
in the county of New York, consent and submit to the exclusive jurisdiction of
each such court in any such suit, action or proceeding and waive any objection
which they, or any of them, may have to personal jurisdiction or the laying of
venue of any such suit, action or proceeding in any such courts and agree not to
seek to change venue.
15. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, STERLING AND TRANSAMERICA HEREBY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS
CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING
OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. STERLING
AND TRANSAMERICA EACH ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER
IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS
WAIVER IN THEIR RELATED FUTURE DEALINGS. STERLING AND TRANSAMERICA FURTHER
WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS
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LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR
MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
HERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
16. Counterparts. This Agreement and any amendments, waivers, consents, or
supplements may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which, when so executed and
delivered, will be deemed an original and all of which shall together constitute
one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first written above.
STERLING NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxx
------------------------
Xxxxxxx Xxxxxxx
Executive Vice President
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ Xxx X. XxXxxxx
------------------------
Xxx X. XxXxxxx
Vice President - Credit
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ACKNOWLEDGEMENT
Each of the undersigned Borrowers hereby acknowledges and consents
to the terms of the foregoing Intercreditor Agreement and confirms that it will
make no payments and take no other actions contrary to the terms of such
Intercreditor Agreement.
Dated:August 27, 1997 BUSINESS LOAN CENTER, INC.
By: /s/ Xxxxxxxx Xxxxxx
--------------------------
Xxxxxxxx Xxxxxx
Chief Financial Officer
BLC FINANCIAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxxxxxx
President
BUSINESS LOAN CENTER
By: Business Loan Center, Inc.,
a general partner
By: /s/ Xxxxxxxx Xxxxxx
-----------------------
Xxxxxxxx Xxxxxx
Chief Financial Officer
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ACKNOWLEDGMENT OF INSTRUMENTS
STATE OF _________________ )
) SS.
COUNTY OF __________________ )
On __________________________ before me, the undersigned notary public in
and for said state, personally appeared ________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument, the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
ACKNOWLEDGMENT OF INSTRUMENTS
STATE OF _________________ )
) SS.
COUNTY OF __________________ )
On __________________________ before me, the undersigned notary public in
and for said state, personally appeared ________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
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his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument, the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
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