EXHIBIT 10.37
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COLLATERAL AGENCY AGREEMENT
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THIS COLLATERAL AGENCY AGREEMENT, dated as of May 15, 2000 (this
"Agreement"), is among Xxxxxx Capital Management, Inc. a division of Xxxxx,
Lewittes & Xxxxxxx (the "Agent") and undersigned note holders listed on the
signature page attached hereto (the "Secured Creditors").
RECITALS:
A. Entrade Inc., a Pennsylvania corporation, ("Borrower"), and the
Secured Creditors, have entered into certain Secured Promissory Notes in
the aggregate principal amount of $7,000,000 (the "Notes");
B. The Notes are secured by a pledge of certain shares of common
stock of Public Liquidation Systems, Inc., a Nevada corporation, and Asset
Liquidation Group, Inc., a Nevada corporation (collectively, the
"Collateral") pursuant to the terms of that certain Pledge Agreement (the
"Pledge Agreement") made by Borrower and the Secured Creditors;
C. The Secured Creditors and Agent desire to enter into this
Agreement and to set forth certain agreements relating to, among other
things, (a) the administration of liens created under the Pledge Agreement
and (b) the sharing of proceeds of Collateral;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, and for other good and valuable
consideration, the parties hereto hereby agree as follows:
1 DEFINITIONS
1.1 "Agent Claims" shall have the meaning ascribed thereto in
Section 2.2(a) of this Agreement.
1.2 "Credit Agreements" shall mean, collectively, this Agreement,
the Pledge Agreement, the Notes that certain Note and Warrant Purchase
Agreement made by Borrower and the Secured Creditors, the Creditors
Agreement made by all parties to the Note and Warrant Purchase Agreement
the ("Creditors Agreement"), and all agreements, documents and instruments
contemplated thereby or executed in connection therewith, as any and all of
the foregoing documents may be amended, modified or supplemented from time
to time.
1.3 "Liabilities" shall mean any and all of Borrower's obligations
to the Secured Creditors, howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter existing or
due or to become due, under the Credit Agreements.
1.4 "Business Day" shall mean any day of the year on which the
Agent is open for business in Chicago, Illinois.
1.5 "Collateral" shall have the meaning defined in the Pledge
Agreement.
1.6 "Event of Default" shall have the meaning ascribed thereto in
Section 2.6 of this Agreement.
1.7 "Indemnified Lender Amounts" shall mean, at the time any
determination thereof is to be made, all costs, expenses, fees,
indemnities, reimbursements and other amounts then due and payable by
Borrower to the Secured Creditors under the Credit Agreements (other than,
in each case, costs, expenses, and other amounts (1) which relate to
Nonindemnifiable Litigation Expense (as hereinafter defined), (2) with
respect to any Secured Creditor, which relate to matters for which such
Secured Creditor has agreed to indemnify and hold harmless the other
Secured Creditors and the Agent pursuant to Section 2.2(c) of this
Agreement, or (3) with respect to any Secured Creditor, payments to be made
by such Secured Creditor pursuant to Section 2.2(c) of this Agreement).
For purposes of this definition and the provisions in which this term is
contained, the term "Secured Creditor" shall be deemed to include any
director, officer, attorney, accountant, consultant, agent or employee of
the Secured Creditor.
1.8 "Nonindemnifiable Agent Claims" shall have the meaning ascribed
thereto in Section 2.2(a) of this Agreement.
1.9 "Nonindemnifiable Litigation Expenses" shall mean any costs,
expenses, fees, indemnities and other amounts payable by Borrower to a
Secured Creditor or Secured Creditors which relate to claims made against a
Secured Creditor by Borrower or a third party and which relate to a claim
with respect to which it is finally determined by a court of competent
jurisdiction that the Secured Creditor to whom such amounts are owned
failed to act in good faith or in a manner which is commercially
reasonable.
1.10 "Pledge Agreement" shall mean that certain Pledge Agreement to
be made by the Borrower and the Secured Creditors.
1.11 "Secured Creditors' Representative" shall mean Genesee Mutual
Investments, LLC.
1.12 "Other Definitions" when used herein, the words "goodfaith"
and "reasonableness" shall have the meaning ascribed thereto in the Uniform
Commercial Code, as interpreted by the federal and state courts having
jurisdiction over Illinois matters.
2 AGENCY AGREEMENT
2.1 AUTHORIZATION. The Agent shall act as collateral agent, in a
fiduciary capacity, for all purposes for the mutual benefit of the Secured
Creditors with respect to the Liabilities. In no event shall any of the
Secured Creditors, in their individual capacity as Secured Creditors with
respect to the Liabilities, acting independently of Agent, exercise any
rights or remedies with respect to the Collateral. Subject to the terms
and conditions hereof, each Secured Creditor irrevocably authorizes the
Agent, on behalf of the Secured Creditors, but only at the direction of the
Secured Creditors' Representative, to exercise such rights and remedies of
the Agent provided for under this Agreement and the other Credit Agreements
in existence on the date hereof or hereafter entered into with the written
consent of the Secured Creditors' Representative and to take such other
actions as may be reasonably incidental thereto; provided, that the Agent
shall not have the authority to amend, supplement, modify or waive any
provision of or give any consent under any of the Credit Agreements without
the prior written consent of the Secured Creditors' Representative; and,
provided further, that the Agent shall consult regularly and as-needed with
the Secured Creditors' Representative and shall act in accordance with any
instructions provided to it by the Secured Creditors' Representative.
Subject to its fiduciary obligations, the Agent may perform any of its
duties hereunder by or through agents or employees, and shall be entitled
to retain counsel and to act in reliance on the advice of such counsel
concerning all matters pertinent to the agencies created hereby and its
duties hereunder, and shall not be liable for any action taken or omitted
to be taken by it in good faith in accordance with the advice of counsel
selected by it, except as provided in Section 2.3 of this Agreement.
2.2 INDEMNIFICATION.
(a) Each Secured Creditor hereby agrees jointly and severally
to indemnify and hold harmless the Agent from and against any and all
losses, liabilities (including liabilities for penalties), actions, suits,
judgments, demands, damages, reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses), reasonably
incurred or suffered by the Agent, in its capacity as such, as a result of
any action taken or omitted to be taken by the Agent in such capacity, or
otherwise incurred or suffered by, made upon, or assessed against the Agent
in such capacity, relating to or arising out of this Agreement, or any
other Credit Agreements (collectively, "Agent Claims"); provided, however,
that (i) no Secured Creditor shall be required to indemnify or hold
harmless the Agent from and against any Agent Claims (collectively,
"Nonindemnifiable Agent Claims") resulting from or attributable to (1) the
failure of the Agent or of its officers, employees or agents to act in its
fiduciary capacity, in good faith or in a manner which is commercially
reasonable (2) the Agent's gross negligence or willful misconduct, or (3)
any action taken by the Agent in connection with enforcing its and the
Secured Creditors' rights and remedies with respect to the Collateral not
consented to in writing, or deemed to be consented to under Section 2.2(f)
of this Agreement, but such Secured Creditor, except that such Secured
Creditor shall indemnify the Agent to the extent of any amount distributed
or distributable to such Secured Creditor as a result of such unconsented
action, and (ii) any Secured Creditor's payment of any amount to the Agent
pursuant to this Section shall not prejudice the rights of such Secured
Creditor to assert a claim, in a separate action or proceeding, against the
Agent to recover any portion of any such Agent Claims previously reimbursed
by such Secured Creditor resulting from or attributable to Nonindemnifiable
Agent Claims. In furtherance of the foregoing, each Secured Creditor
hereby agrees that the Agent may retain, from the proceeds of the
Collateral in accordance with Section 2.8 of this Agreement, any out-of-
pocket expenses (including, without limitation, reasonable attorneys' fees
and expenses) incurred by the Agent in its capacity as Agent and not
reimbursed to the Agent by Borrower or any Secured Creditor, except that
the Agent shall not be reimbursed for costs and expenses incurred by the
Agent which constitute, or which relate to the defense of, Nonindemnifiable
Agent Claims except to the extent otherwise indemnifiable as provided in
clause (i)(3) of this Section 2.2(a). Any Secured Creditor may, at its
option, reimburse the Agent any such out-of-pocket expenses at any time.
Obligations of each Secured Creditor and of the Agent under this Section
2.2 shall survive the termination of this Agreement and the discharge of
the Liabilities for the applicable statute of limitations period with
respect to claims against the Agent or a Secured Creditor.
(b) The Agent hereby agrees to indemnify and hold harmless
the Secured Creditors' Representative and each Secured Creditor from and
against any and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, damages, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses),
incurred or suffered by such Secured Creditor as a result of any action
taken or omitted to be taken by the Agent in breach of this Agreement, or
as a result of any action taken or omitted to be taken by Agent, or
otherwise incurred or suffered by, made upon, or assessed against such
Secured Creditor, which result from or are attributable to the failure of
the Agent to act in a fiduciary capacity, in good faith or in a manner
which is commercially reasonable.
(c) Each Secured Creditor hereby agrees to indemnify and hold
harmless the other Secured Creditors and the Agent from and against any and
all actions, suits, judgments, demands, damages, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses),
incurred or suffered by any other Secured Creditor or the Agent as a result
of any action taken or omitted to be taken by such Secured Creditor or
otherwise incurred or suffered by, made upon, or assessed against any other
Secured Creditor or the Agent which result from or are attributable to the
failure of such Secured Creditor or of its officers, employees or agents to
act in good faith or in a manner which is commercially reasonable.
(d) Any Agent Claims that are not required to be reimbursed
by any Secured Creditor pursuant to the proviso in Section 2.2(a) of this
Agreement, after appropriate court determination, where required, shall not
constitute Indemnified Agent Amounts.
(e) In the event of any third party claim against the Agent
or any Secured Creditor (the "Indemnified Party") with respect to which the
Agent or the Secured Creditors (the "Indemnifying Parties") are obligated
to indemnify the Indemnified party hereunder, the party which bears the
greatest risk of loss, as determined by the Secured Creditors, with respect
to such claim under the provisions of this Agreement (taking into account,
among other things, the impact of any possible payment of the losses, costs
and expenses relating thereto pursuant to items First and of Section 2.8
hereof) shall be called the "Major Indemnifying Party". With respect to
any such third party claim, the Indemnified Party shall keep the
Indemnifying Parties advised as to the status of the claim, any proceedings
initiated with respect thereto and any settlement discussions occurring
with respect thereto, and shall consult with the major Indemnifying Party
with respect to the defense thereof. The Major Indemnifying Party shall
have the right, at its option and expense, to be represented by counsel of
its choice and to defend against, negotiate, settle or otherwise deal with
the third party claim. Each other Indemnifying Party shall have the right
to be consulted with respect to actions to be taken in connection
therewith. The Indemnified Party agrees not to settle any such third party
claim in an amount in excess of $50,000 without the prior written consent
of the Major Indemnifying Party (which consent will not be unreasonably
withheld) and agrees not to unreasonably withhold its agreement to any
settlement thereof approved by the Major Indemnifying Party; provided that,
in the event that the Major Indemnifying Party or the Indemnified Party
(the "Requesting Party") reasonably requests the consent of the other (the
"Responding Party") to settle a third party claim and the Responding Party
unreasonably fails to consent to the settlement of the claim on the terms
described by the Requesting Party, the Responding Party shall indemnify and
hold harmless the Requesting Party from and against liabilities and losses,
incurred by the Requesting Party pursuant to a final judgment rendered with
respect to the third party claim in excess of such liabilities and losses
which otherwise would have bene incurred by the Requesting Party under the
terms of the settlement offer which the Responding Party declined to
accept.
(f) For purposes of this Agreement, each Secured Creditor
shall have seven (7) Business Days following receipt of written notice of
any action proposed to be taken by the Agent in its capacity as Agent in
connection with enforcing its and the Secured Creditors' rights and
remedies with respect to the Collateral to grant its consent, or to
disapprove of such action. Failure of such Secured Creditor to respond in
writing to the Agent within seven (7) Business Days following receipt of
such notice from the Agent shall be deemed consent to the proposed action.
2.3 EXCULPATION. The Agent shall be entitled to rely upon advice
of counsel, concerning legal matters, and upon this Agreement, the Credit
Agreements, any security agreement, schedule, certificate, statement,
report, notice or other writing which it believes in good faith, after
reasonable inquiry, to be genuine or to have been presented by a proper
person. Except to the extent of its, or their, respective actual
knowledge, neither the Agent in its capacity as such nor any of its
directors, officers, employees or agents shall (i) be responsible for any
recitals, representations or warranties contained in, or for the execution,
validity, genuineness, effectiveness or enforceability of this Agreement,
the Credit Agreements or any instrument or document delivered under or in
connection with any thereof, (ii) be responsible for the validity,
genuineness, perfection, effectiveness, enforceability, existence, value or
enforcement of any collateral security, (iii) subject to the limitations
set forth below, be under any duty to inquire into or pass upon any of the
foregoing matters, or to make any inquiry concerning the performance by
Borrower or any other obligor of its obligations, or (iv) in any event, be
liable as such for any action taken or omitted by it or them, except for
liability resulting from (x) its or their failure to act in a fiduciary
capacity, in good faith or in a manner which is commercially reasonable or
(y) a material breach by the Agent of this Agreement.
2.4 RESIGNATION OR REMOVAL. The Agent may resign as such at any
time upon at least thirty (30) days' prior notice to Borrower and the
Secured Creditors' Representative. The Secured Creditors' Representative
may remove the Agent upon written notice to the Agent and the Borrower. No
such resignation or removal shall become effective unless and until a
successor Agent under this Agreement is appointed and has accepted the
appointment. In the event of resignation or removal of the Agent
hereunder, the Agent shall be entitled to its fees and expenses to the date
of removal. In the event of any such resignation or removal, the Secured
Creditors' Representative shall promptly as practicable appoint a successor
Agent mutually satisfactory to them. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement
except the duty to execute and deliver any documents necessary to vest or
confirm the vesting of such rights, powers, privileges and duties in such
successor Agent, and to cooperate with the Secured Creditors'
Representative and any successor Agent in the prosecution or defense of
claims by or against the Secured Creditors relating to or arising out of
the Credit Agreements. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Agreement shall continue in
effect with respect to actions taken or omitted to be taken by said Agent
while it was acting in its capacity as Agent hereunder. After the retiring
Agent's resignation or removal hereunder as Agent, each reference herein to
a place for giving of notice or deliveries to the Agent shall be deemed to
refer to the principal office of the successor Agent or such other office
of the successor Agent as it may specify to the Secured Creditors'
Representative.
2.5 CUSTODY OF COLLATERAL. The Agent shall be responsible for the
custody and preservation of the Collateral consisting of securities and act
in good faith and in a commercially reasonable manner with respect to the
custody and preservation of the Collateral in its possession.
2.6 NOTICE OF DEFAULT. The Agent shall give the Secured Creditors'
Representative notice, as soon as reasonably practicable, if the Agent
obtains actual knowledge, that an "event of default" under any Credit
Agreement ("Event of Default") shall have occurred and be continuing;
provided, however, that, in the absence of such knowledge, the Agent shall
not be liable to any person or entity for its failure to give such notice,
and such failure shall not impair or otherwise affect the validity of any
action taken by the Agent pursuant to this Agreement or any of the Credit
Agreements.
2.7 ENFORCEMENT OF THE SECURITY INTERESTS. The Agent acknowledges
that it holds all liens and security interests granted and provided in the
Credit Agreements for the pro-rata benefit of the Secured Creditors with
respect to the Liabilities. Subject to the provisions of this Agreement,
the Agent may exercise from time to time such rights and remedies as are
available to it and the Secured Creditors with respect to the Liabilities
under the Credit Agreements and the applicable law with respect to the
Collateral. Subject to the foregoing, and subject to the instructions of
the Secured Creditors' Representative, as to which Agent shall abide,
following the occurrence of an Event of Default, the Agent, in its capacity
as such, shall in its reasonable discretion determine the time, manner and
method in which the Agent shall exercise the rights and remedies of the
Secured Creditors under the Credit Agreements. The Agent agrees that,
following the occurrence of an Event of Default, upon the request of the
Secured Creditors' Representative, it will confer with the Secured
Creditors' Representative or a representative selected by the Secured
Creditors' Representative on a weekly basis (or such other periodic basis
as may be agreed to by the Secured Creditors' Representative and the Agent)
at a mutually acceptable time by telephone or other mutually agreeable
means, and report to the Secured Creditors' Representative or
representative concerning the status of any foreclosure proceedings and
other actions taken or proposed to be taken with respect to the realization
upon the Collateral. Except as otherwise provided in this Agreement, the
Agent shall have no liability to the Secured Creditors for any action taken
or omitted to be taken or for any error in judgment, except for its failure
to act in a fiduciary capacity, in good faith or in a manner which is
commercially reasonable as finally determined by a court of competent
jurisdiction. Anything contained in the Credit Agreements to the contrary
notwithstanding, the Secured Creditors agree among themselves and for their
own benefit alone that the liens and security interests granted and
provided for in the Credit Agreements shall not be enforced unless
permitted by the terms of the applicable law.
2.8 ALLOCATION OF COLLATERAL PROCEEDS. All proceeds of Collateral
received by the Agent from and after the occurrence of an Event of Default
shall be disbursed by the Agent for the following purposes and in the
following order of priority:
FIRST, to reimburse the Agent for unpaid Agent Claims;
SECOND, to the Secured Creditors in reimbursement for any Agent
Claims theretofore paid by such Secured Creditors proportionately to each
such Secured Creditor according to the relationship which the amount of
Agent Claims paid by such Secured Creditor bears to the aggregate amount of
all Agent Claims paid by the Secured Creditors;
THIRD, to the Secured Creditors in reimbursement for
Indemnified Lender Amounts, proportionately to each Secured Creditor
according to the relationship which Indemnified Lender Amounts paid by such
Secured Creditor bears to all Indemnified Lender Amounts;
FOURTH, to the Secured Parties in payment of accrued and unpaid
interest on principal amounts of the Notes proportionately according to the
relationship which such accrued and unpaid interest owned to each Secured
Creditor bears to the aggregate amount of such accrued and unpaid interest
owed to the Secured Creditors under the Notes;
FIFTH, to the Secured Creditors in payment of outstanding
principal amounts of the Notes proportionately according to the
relationship which such outstanding principal amounts bears to the
aggregate amount of such outstanding principal amounts owed to the Secured
Creditors under the Notes.
3 MISCELLANEOUS
3.1 NOTICES. All notices hereunder shall be addressed to the
Secured Creditors at the addresses next to their names as set forth on
Exhibit A to the Note and Warrant Purchase Agreement and to the Agent and
Borrower as follows:
(a) If to Agent:
Xxxxxx Capital Management, Inc.
a division of Xxxxx, Lewittes & Xxxxxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
(b) If to Borrower:
Entrade Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to:
Duane, Morris & Heckscher LLP
000 X. Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx, Esq.
or to such other address or person as any of the parties hereto may
designate in writing to the other parties. Every notice hereunder shall be
deemed to have been duly given or served on the date such notice is
personally delivered provided that the receipt of such notice is
acknowledges; or three (3) Business Days after the same shall have been
deposited in the United States mail, first class, properly addressed with
postage prepaid; or one (1) Business Day after the same shall have been
sent by overnight courier; or if telecopied, be effective upon confirmation
by telephone.
3.2 NO ADDITIONAL RIGHTS FOR BORROWER HEREUNDER. If any Secured
Creditor shall enforce its rights or remedies in violation of the terms of
this Agreement, Borrower agrees that it shall not use such violation as a
defense to the enforcement by any Secured Creditor under the Credit
Agreements nor assert such violation as a counterclaim or basis for set-off
or recoupment against any Secured Creditor.
3.3 INDEPENDENT CREDIT INVESTIGATIONS. None of the Secured
Creditors nor any of their respective directors, officers, agents or
employees shall be responsible to any other Secured Creditor or to any
other person, firm or corporation, for the Borrower's or any Subsidiary's
solvency, financial condition or ability to repay any of the Liabilities,
or for statements of the Borrower or any Subsidiary, oral or written, or
for the validity, sufficiency or enforceability of any of the Liabilities,
the Credit Agreements, or any liens or security interests granted by
Borrower or any Subsidiary to the Agent, for the ratable benefit of the
Secured Creditors with respect to the Liabilities, in connection therewith.
Each Secured Creditor hereby acknowledges that it has entered into its
respective financing agreements with Borrower based upon its own
independent investigation and credit determination, and makes no warranty
or representation to the other Secured Creditor nor does it rely upon any
representation of any other Secured Creditor with respect to matters
identified or referred to in this Section.
3.4 LIMITATION ON LIABILITY OF SECURED CREDITORS TO EACH OTHER.
Except as otherwise provided in this Agreement or the Creditors Agreement,
no Secured Creditor shall have any liability to any other Secured Creditor.
3.5 NO WAIVER/AMENDMENTS. No delay on the part of the Agent or any
Secured Creditor in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by the Agent or any
Secured Creditor of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy; no
modification or waiver of any of the provisions of this Agreement shall be
binding except as expressly set forth in a writing duly signed and
delivered on behalf of the party to be charged.
3.6 COMPUTATIONS. Where the character or amount of any asset or
liability or item of income or expense is required to be determined, or
consolidation or other accounting computation is required to be made, for
the purpose of this Agreement, such determination or calculation shall, to
the extent applicable and except as otherwise specified in this Agreement,
be made in accordance with generally accepted accounting principles applied
on a basis consistent with those at the time in effect.
3.7 COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand
all out-of-pocket costs and expense of the Agent incurred in its capacity
as Agent (including the reasonable fees and out-of-pocket expenses of
counsel for the Agent) in connection with the preparation, execution,
delivery and administration of this Agreement and of the Credit Agreements
and all other instruments or documents provided for therein or delivered or
to be delivered thereunder or in connection therewith, the filing,
recording, refiling or re-recording of any documents and/or any financing
statements and notices relating thereto and all amendments or supplements
to any thereof and any and all other documents or instruments of further
assurance required to be filed or recorded or refiled or re-recorded by the
terms of any of the Credit Agreements and all out-of-pocket costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred
by the Agent in its capacity as Agent in connection with the enforcement of
this Agreement or the Credit Agreements and any such other instruments or
documents or any Collateral. All obligations provided for in this Section
shall survive any termination of this Agreement and the discharge of the
Liabilities.
3.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of each
of the parties hereto, but does not otherwise create, and shall not be
construed as creating, any rights enforceable by any person not a party to
this Agreement other than a transferee or a participant of a Secured
Creditor or the Agent but only if such party agrees in writing to be bound
by the provisions of this Agreement.
3.9 ACKNOWLEDGMENT AND WAIVER. Each of the Secured Creditors
acknowledge that Agent has received a commission from the Borrower. Agent
represents to the Secured Creditors that except for such commission, it has
no right or contingent right to receive any payment, compensation or other
benefit from Borrower. Each of the Secured Creditors, in consideration for
and as an inducement to the Agent to serve in the capacity of Agent under
this Agreement, hereby affirmatively waive any and all right to assert that
Agent's receipt of such commission and its representation of Borrower prior
to the date hereof constitutes a conflict of interest with Agent's
obligations under this Agreement, and to the extent that there is
potential, or perceived, conflict of interest, each of the Secured
Creditors hereby waive any right to assert that such a potential, or
perceived, conflict precludes Xxxxxx Capital Management, from acting as the
Agent under this Agreement.
3.10 GOVERNING LAW AND JURISDICTION. This Agreement shall be
governed as to validity, interpretation, enforcement and effect by the
internal laws of the State of Illinois (without giving effect to principles
of conflicts of law). Each party hereto hereby agrees to irrevocably
submit to the nonexclusive jurisdiction of any Illinois state or Federal
court sitting in Xxxx County, Illinois over any suit, action or proceeding
arising out of or relating to this Agreement, and any such party hereby
agrees and consents that, in addition to any methods of service or process
provided for in any applicable law, all service of process in any such
suit, action or proceeding in any Illinois state or Federal court sitting
in Xxxx County, Illinois may be made by certified or registered mail,
return receipt requested, directed to the applicable party at the address
indicated in Section 3.1 hereof, or such other address as such party shall
have given to the other parties hereto in accordance with Section 3.1, and
service so made shall be complete five (5) Business Days after the same
shall have been so mailed.
3.11 INFORMATION. Upon the request of any Secured Creditor or the
Agent, each Secured Creditor and Agent agrees to use its reasonable best
efforts to provide, any other Secured Creditor and the Agent with all
information in its possession relating to the transactions contemplated by
the Credit Agreements and with any credit or other information with respect
to any of the Collateral.
3.12 COUNTERPARTS. This Agreement and any amendment or supplement
hereto or any waiver granted in connection herewith may be executed in any
number of counterparts and each such counterpart shall be deemed to be an
original, but all such counterparts shall together constitute but one and
the same agreement.
3.13 SECTION TITLES. The section titles contained in this Agreement
are and shall be deemed to be without substantive meaning or content of any
kind whatsoever and are not a part of the agreement between the parties
hereto.
3.14 ENTIRE AGREEMENT. This Agreement and the other documents and
instruments being executed, delivered or both, concurrently herewith, set
forth the entire understanding and agreement of the parties hereto with
respect to the subject matter hereof and supersede all prior
understandings, agreements, arrangements and communications, whether verbal
or written, of the parties regarding the same subject matter.
* * *
IN WITNESS WHEREOF the parties have executed this Agreement as of the
date and year first above written.
AGENT:
Xxxxxx Capital Management, Inc.,
a division of Xxxxx, Lewittes & Xxxxxxx
By:
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Title:
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SECURED CREDITORS:
THE XXXXXX FAMILY TRUST
By:
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Xxxxxxx X. Xxxxxx, TTEE
THE XXXX FAMILY TRUST
By:
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Xxxxx X. Xxxx, TTEE
FIRST FRUIT, INC.
By:
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Xxxxx X. Xxxx, President
GENESEE MUTUAL INVESTMENTS, LLC
By:
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Xxxx X. Xxxx, Manager
FOR HIS ADOPTED CHILDREN, INC.
By:
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Xxxx X. Xxxx, President
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Xxxxxx Xxxxx
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Xxxxx Xxxxxxxxxxx
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Xxxxx Xxxxxx
The undersigned hereby acknowledges and agrees to the foregoing
provisions. By executing this Agreement, the undersigned agrees to be
bound by the provisions hereof as they relate to the relative rights of
Secured Creditors as between such Secured Creditors; provided, however,
that nothing in this Agreement shall amend, modify, change or supersede the
respective terms of the Credit Agreements (or any other document to which
any of the undersigned may be a party) as between the Secured Creditors and
the undersigned and, except with respect to the relative rights of the
Secured Creditors to receive payment on the Liabilities, in the event of
any conflict or inconsistency between the terms of this Agreement and the
Credit Agreements (or any such other documents, as the case may be) the
terms of the Credit Agreements (and such other documents) shall govern.
The undersigned further agrees that the terms of this agreement shall not
give the undersigned any substantive rights vis-a-vis any of the Secured
Creditors.
ENTRADE INC.
By:
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Title:
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