EXHIBIT 10.41
SUBORDINATION AGREEMENT
January 31, 2000
Greyrock Capital, a division of Banc of America
Commercial Finance Corporation
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Re: XXXXXXX.XXX, INC. (the "Debtor")
Ladies and Gentlemen:
The above-captioned Debtor is now indebted to Clifcor Capital, LLC and the
other Holders (as defined in the Agreement and Plan of Merger, dated December
29, 1999, as amended (the "Merger Agreement") (collectively, "Junior Creditor")
in the amount of $2,000,000.00 (the "Present Indebtedness"). Said indebtedness
has not heretofore been assigned or subordinated.
To induce Greyrock Capital, a division of Banc of America Commercial
Finance Corporation (the "Senior Creditor) to enter into or to refrain from
terminating a financial agreement with the Debtor and in consideration of any
loans, advances, payments, extensions of credit (including the extension or
renewal, in whole or in part, of any antecedent or other debt), benefits or
financial accommodations heretofore or hereafter made, granted or extended by
the Senior Creditor to or for the account of the Debtor, whether under said
arrangements or otherwise, the Junior Creditor hereby makes subject and
subordinate the payment of the Present Indebtedness as well as all other present
and/or future indebtedness of Debtor to the undersigned together with any and
all interest accrued or to accrue thereon (hereinafter referred to as the
"Junior Debt ") to the payment of principal and interest (including interest
accruing after the date on which the Debtor becomes subject to the jurisdiction
of any federal or state debtor relief statute, whether or not recoverable
against the Debtor) of any and all present and future debts and obligations of
Debtor to the Senior Creditor, whether absolute or contingent, due or to become
due, and whether direct or acquired by the Senior Creditor by transfer,
assignment or otherwise whether or not such debts are contemplated by the
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Debtor, the Senior Creditor, or the Junior Creditor (all hereinafter referred to
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as "Senior Debt") and the Junior Creditor agrees not to ask, demand, xxx for,
take or receive payment of, discharge the Debtor from, or take capital stock of
the Debtor in exchange for all or any part of the Junior Debt unless and until
the Senior Debt shall have been fully paid and discharged, and all commitments
by the Senior Creditor to extend credit to the Debtor shall have been
terminated; provided, however, that the Junior Creditor may receive, and the
Debtor may make, required payments in respect of the Present Indebtedness and
any interest thereon.
Notwithstanding the terms or provisions of any agreement or arrangement
which the Senior Creditor or Junior Creditor may now or hereafter have with the
Debtor or any rule of law and irrespective of the time, order or method of
perfection of any security interest or the recordation or other filing in any
public record of any financing statement, any security interest in the assets of
Debtor described in Exhibit A hereto (the "Senior Creditor Collateral') granted
to the Senior Creditor by the Debtor, whether or not perfected, are and shall
remain senior to any security interest therein now or hereafter granted by the
Debtor to the Junior Creditor.
The Junior Creditor shall have no right to take any action with respect to
the Senior Creditor Collateral, whether by judicial or non-judicial foreclosure,
notification to the Debtor's account debtors, or otherwise, unless and until all
Senior Debt has been fully and indefeasibly paid, and the Senior Creditor shall
have no commitment to extend any further credit to Debtor.
This agreement is solely for the benefit of the parties and shall bind each
of the parties and its respective successors and assigns, and no entity shall
have any right, benefit, priority, or interest hereunder. This agreement shall
be subject to modification only in writing, signed by Senior Creditor and Junior
Creditor. This agreement shall remain in effect so long as Junior Creditor has a
lien or security interest in any property of the Debtor, or until all of
Debtor's Obligations to Senior Creditor have been paid in full.
Any proceeds of the Senior Creditor Collateral, or proceeds thereof
(whether or not identifiable), received by the Junior Creditor shall be paid to
the Senior Creditor on demand.
This Agreement shall remain in full force and effect notwithstanding the
filing of a petition for relief by or against the Debtor under the Bankruptcy
Code and shall apply with full force and effect with respect to all Senior
Creditor Collateral acquired by the Debtor, or obligations incurred by the
Debtor to the Subordinating Creditor, subsequent to the date of said petition.
The Junior Creditor irrevocably waives any right to compel the Senior
Creditor to marshal assets of the Debtor, whether such rights arise under
California Civil Code section 3433 or otherwise.
Upon the distribution of any assets of Debtor (whether by reason of sale,
reorganization, liquidation, dissolution, arrangement, bankruptcy, receivership,
assignment for the benefit of creditors, foreclosure or otherwise) the Senior
Creditor shall be entitled to receive payment in full of the Senior Debt
(including without limitation interest arising subsequent to the date of the
filing by or against Debtor of any petition for relief under the Federal
Bankruptcy Code or the making of any assignment for the benefit of creditors,
whether or not such interest is recoverable from or provable against Debtor)
prior to the payment of all or any part of the Junior Debt, other than Permitted
Payments; and you are hereby irrevocably appointed attorney-in-fact for the
Junior Creditor with full power to act in the place and stead of the Junior
Creditor in all matters relating to or affecting the Junior Debt, including the
right to make, present, file and vote such proofs of claim against Debtor on
account of all or any part of the Junior Debt as you may deem advisable and to
receive and collect any and all dividends or other payments ("Dividends") made
thereon and to apply the same on account of the Senior Debt. The Junior Creditor
will execute and deliver to you such instruments as may be required by you to
enforce any and all Junior Debt, to effectuate the aforesaid power of attorney
and to effect collection of any and all Dividends which may be made at any time
on account thereof.
The Junior Creditor will not, without your prior written consent, assign to
or subordinate in favor of any other entity any right, claim or interest in any
part of the Junior Debt (except to any person or entity which shall have come an
express party to this Agreement by executing a counterpart to this Agreement
agreeing to be a Junior Creditor for the purposes of hereof), or commence or
join with any other creditor in commencing any bankruptcy, reorganization or
insolvency proceeding against Debtor.
The Senior Creditor may at any time, in its discretion, renew or extend the
time of payment of any portion of the Senior Debt, or waive or release any
collateral which may be held therefor, and the Senior Creditor may enter into
such agreements with Debtor as it may deem desirable without notice to or
further assent from the Junior Creditor and without in any way affecting the
rights of the Senior Creditor hereunder.
This instrument is and shall be deemed to be a continuing subordination and
shall be irrevocable. The Debtor acknowledges that attempted or purported
termination of this Agreement by the Junior Creditor shall constitute a default
in the terms and conditions of the Senior Debt.
THE JUNIOR CREDITOR HEREBY WAIVES TRIAL BY JURY AND CONSENTS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA, AND THE UNITED STATES
DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA, IN ANY ACTION OR PROCEEDING
COMMENCED IN ENFORCEMENT HEREOF. IN THE EVENT THAT THE SENIOR CREDITOR COMMENCES
ANY ACTION OR SUIT IN THE FOREGOING COURTS TO ENFORCE THIS SUBORDINATION
AGREEMENT, SERVICE OF PROCESS MAY BE MADE ON THE JUNIOR CREDITOR BY MAILING A
COPY THEREOF TO THE JUNIOR CREDITOR AT THE ADDRESS SET FORTH BELOW, OR AT SUCH
OTHER ADDRESS AS THE SENIOR CREDITOR SHALL HAVE BEEN ADVISED IN WRITING.
In the event that either party deems it necessary to retain counsel to
enforce any provision herein, the prevailing party shall recover all its
attorneys fees and expenses from the unsuccessful party.
The Senior Creditor is authorized to demand specific performance of this
agreement, whether or not Debtor or Junior Creditor has complied with any of the
provisions hereof. Debtor and Junior Creditor waive any defense based on the
adequacy of a remedy at law which might be asserted as a bar to such remedy of
specific performance.
Xxxxx Xxxxxxxx hereby represents and warrants to the Senior Creditor that
he is authorized to act as agent on behalf of Clifcor Capital LLC and as
attorney-in-fact for the other Holders of the Junior Debt in the negotiation,
execution and delivery of this Agreement, and that Junior Creditor's
undertakings hereunder shall bind each and every Holder of the Junior Debt.
The Debtor acknowledges notice of this Agreement and agrees to be bound by
all of its terms and conditions. The Debtor hereby acknowledges that the Junior
Debt is due and owing as of the date hereof without setoff, defense or
counterclaim.
CLIFCOR CAPITAL LLC
By: -------------------------
Name: Xxxxx Xxxxxxxx
Title: President
By: -------------------------
Xxxxx Xxxxxxxx, as attorney in
fact on behalf of:
Xxx Xxxxxx
Xxxxxxx Xxxxxxxxx
Xxxx X. Xxxxxxx
X.X. XxXxxxxxxx
Xxxxx X'Xxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxx-Xxxxxx
Xxxxxx X. Xxxx, as Trustee under the
Xxxxxx X. Xxxx Living Trust UTD 10/31/94
Xxxxxxxx X. Xxxx, as Trustee under the
Xxxxxxxx X. Xxxx Living Trust UTD 10/31/94
Xxxx Xxxxxxx
Xxxx Xxxxxxxx
Xxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx
Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxx
Xxx Xxxxx
Xxxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxxx
Xxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx
Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxx
Xxx Xxxxx
Xxxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxx
ACCEPTED AND AGREED
this _____ of January, 2000
GREYROCK CAPITAL
a division of Banc of America Commercial Finance Corporation
By: _______________________
Name: _______________________
Title: _______________________
XXXXXXX.XXX, INC.
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
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Title: Vice President of Finance
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