AGREEMENT FOR
INTERCREDITOR ARRANGEMENTS
THIS AGREEMENT FOR INTERCREDITOR ARRANGEMENTS (this "Agreement"), dated
as of September 2, 2005, is entered into by and among the individuals/entities
set forth on the signature page and on Appendix A to this Agreement (referred to
individually as a "Lender" and collectively referred to as the "Lending Group"),
RVision, LLC, a California limited liability company ("Borrower"), a party to
this Agreement for certain purposes set forth on the signature page of this
Agreement, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual residing in Salt Lake County,
Utah, (the "Lender Representative").
Recitals
A. The Lending Group and Borrower have negotiated the terms and
conditions of a Loan and Security Agreement, the form of which is attached
hereto as Exhibit A (the "Loan Agreement") pursuant to which the Lending Group
has agreed to lend $300,000 to Borrower as evidenced by the Senior Secured
Promissory Note, the form of which is attached hereto as Exhibit B (the "Senior
Note"). Borrower has agreed to secure its obligations under the Loan Agreement
and Senior Note by granting the Lending Group a first lien position security
interest in the Collateral (as defined in the Loan Agreement) which is currently
subject to an existing security interest in favor of Eagle Lake Incorporated, a
Nevada corporation ("Eagle Lake"). In order to provide the Lending Group with a
first lien position security interest in the Collateral and as a condition
precedent to the obligations of the Lending Group under the Loan Agreement and
Senior Note, Borrower has caused Eagle Lake to enter into the Subordination
Agreement, the form of which is attached hereto as Exhibit C (the "Subordination
Agreement") with the Lending Group and Borrower in which Eagle Lake agrees
subordinate its existing security interest in the Collateral to the Lending
Group's security interest in the Collateral.
B. The Lending Group as a whole and each Lender individually desire by
this Agreement to appoint Lender Representative to act as each Lender's
representative to execute and deliver, on behalf of each Lender, the Loan
Agreement, Senior Note, Subordination and other documents and instruments to be
executed, delivered and filed in connection therewith and herewith all of which
shall be referred to herein as the "Loan Documents", to facilitate the
transactions contemplated by the Loan Documents, to perform the ministerial
duties of the Lending Group under the Loan Documents, to establish each Lender's
relative rights and priorities with respect to their secured interest and rights
in the Collateral and to agree to procedures for enforcing rights against the
Collateral in the event of default.
Agreement
In consideration of the foregoing and for other good and valuable
consideration the receipt and sufficiency of which are hereby expressly
acknowledged, the parties hereby agree as follows:
1. Incorporation of Recitals. The above stated recitals are
incorporated herein and made a part hereof by this reference.
2. Definitions. All capitalized terms used but not defined herein shall
have the meanings given to them in the Loan Documents.
3. Appointment of Lender Representative. Each Lender hereby appoints
Lender Representative as its representative in the transactions contemplated by
the Loan Documents and hereby delegates to Lender Representative the authority
to execute and deliver the Loan Documents and to perform the ministerial duties
under the Loan Documents on behalf Lender. The Lender Group agrees to pay Lender
Representative $2,500 for services rendered hereunder and under the other Loan
Documents.
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4. Ratable Sharing of Collateral. Each Lender acknowledges and it is
the intent of the Lending Group that the obligations of the Borrower are
evidenced by a single Senior Note and each Lender hereby agrees (and each Lender
has irrevocably advised and instructed Borrower to recognize) that each Lender
shall participate in a percentage of the total amount of any Collateral and
proceeds of the Collateral calculated as the ratio of each Lender's
participating interest in the Senior Note as set forth on Appendix A to this
Agreement, (the "Participating Interest") to the total principal and interest
owed at any time under the Senior Note.
5. Conversion to Shares of Eagle Lake. If any Lender elects to convert
its Participating Interest the principal amount due and owing under the Senior
Note to shares of Eagle Lake in accordance with the terms of Paragraph 6 of the
Loan Agreement, the Lender shall give the Lender Representative prior written
notice of such election. It is the intent of the Lending Group that each Lender
shall have the right to elect whether or not to convert its Participating
Interest in principal due and owing under the Senior Note to shares of Eagle
Lake.
6. Foreclosure. If a Default or Event of Default, as such terms are
defined in the Loan Documents (collectively, a "Default") shall have occurred
and is continuing, those Lenders holding major of the Participating Interests in
the Senior Note shall notify the Lender Representative of such default and
direct the Lender Representative with the course of action to take in enforcing
the Lending Group's rights and remedies under the Loan Documents against the
Borrower and Collateral including foreclosing on the Collateral if necessary. In
the event of foreclosure on the Collateral, if the Collateral is not purchased
by a third party at a trustees sale or otherwise as provided under the Uniform
Commercial Code, the Lender Representative shall cause title to vest in the
names of each Lender, as tenants in common, with undivided interests in the
Collateral in accordance with its Participating Interest. The Lending Group may
also direct Lender Representative to exercise any further rights or remedies
under the Loan Documents; provided, however, that any interest in or amounts
recorded with respect to the Collateral shall be vested in the names of each
Lender in accordance herewith. Any proceeds received from any such foreclosure,
remedial action, redemption or receivership proceeding related to the Collateral
shall be shared between the Lenders pari passu in a manner proportionate to
their undivided interest in the Collateral at the time of determination.
7. Application of payments with Respect to the Collateral. In the event
of any foreclosure, sale or other disposition of or realization in any manner
upon any of the Collateral, all monies or other property collected or received
by any Lender or the Lender Representative with respect to the Collateral, in
excess of the amount paid to discharge liens upon the Collateral prior to the
Collateral documents (if any), shall be distributed by the collecting Lender or
Lender Representative as follows:
(a) First: to the ratable, pari passu payment of any advances
made by any of the Lenders to satisfy any lien or other claim that may
impair the Collateral, ratably according to the total amounts owing to
the respective Lenders as a result of such advances;
(b) Second: to the Lender Representative in the amount of, and
to apply to, the payment of reasonable costs and expenses incurred by
Lender Representative in connection with the administration and
enforcement of the foreclosed upon Collateral, as the case may be, and
any of the other Loan Documents relating to such foreclosure, including
the reasonable fees and out-of-pocket expenses of counsel employed by
the Lender Representative to the extent that such fees, advances, costs
and expenses, shall not previously have been paid or reimbursed to the
Lender Representative; and
(c) Third: to each Lender, pari passu, in a manner
proportionate to its Participating Interests in the Collateral at the
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time of determination until all indebtedness and other obligations owed
by Borrower under the Senior Note and other Loan Documents have been
satisfied in full, then any excess amount to Borrower.
8. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be
amended with the written consent of the parties or their respective
successors and assigns. Any amendment or waiver effected in accordance
with this Section 8(a) shall be binding upon the parties and their
respective successors and assigns.
(b) Governing Law. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the
parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving
effect to principles of conflicts of law.
(c) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument.
(d) Notices. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon
receipt, when delivered personally or by a nationally-recognized
delivery service (such as Federal Express or UPS) or confirmed
facsimile, or forty-eight (48) hours after being deposited in the U.S.
mail as certified or registered mail with postage prepaid, if such
notice is addressed to the party to be notified at such party's address
or facsimile number as set forth below or as subsequently modified by
written notice.
(e) Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (i) such provision shall be excluded from this
Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement
shall be enforceable in accordance with its terms.
(f) Entire Agreement. This Agreement and the documents
referred to herein are the product of all of the parties hereto,
constitute the entire agreement between such parties pertaining to the
subject matter hereof and thereof, and merge all prior negotiations and
drafts of the parties with regard to the transactions contemplated
herein and therein. Any and all other written or oral agreements
existing between the parties hereto regarding such transactions are
expressly canceled.
This Agreement has been duly executed under seal by the parties hereto
as of the day and year first above written.
LENDING GROUP:
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: ▇▇▇ ▇▇▇ ▇▇▇▇
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JES HOLDINGS, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: ▇▇▇ ▇▇▇ ▇▇▇▇
H. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
By: /s/ H. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: Fiserv ISS & Co.
Title: Trustee FBO H. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile Number: ▇▇▇ ▇▇▇ ▇▇▇▇
LENDER REPRESENTATIVE:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: (801)
BORROWER:
RVision, LLC, for purposes of
acknowledgement of Agreement only.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Address: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
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APPENDIX A
LENDING GROUP
Participating
Name Address Loan Amount Interest
--------------------------------------- -------------------------------------------- --------------- -----------------
JES Holdings, LLC ▇▇▇▇ ▇. ▇▇▇▇ ▇. $50,000.00 16.67%
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------- -------------------------------------------- --------------- -----------------
Fiserv ISS & Co.Trustee FBO H. ▇▇▇▇▇▇ Fiserv ISS & Co. Trustee FOB $100,000.00 33.33%
▇▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
--------------------------------------- -------------------------------------------- --------------- -----------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, #▇▇▇ $150,000.00 50.00%
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------- -------------------------------------------- --------------- -----------------
Total $300,000.00 100%
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