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SUBORDINATION AGREEMENT
Agreement dated as of October 2, 1998, by and among JUNE X. XXXXXX,
XXXX X. XXXXXXX, XX., XXXXXX X. XXXXXX and the UNITED STATES TRUST COMPANY OF
NEW YORK, as Co-Executors of the Estate of Xxxxxx X. Xxxxxx, Late of New York,
New York (collectively, the "Estate") and CONNECTICUT INNOVATIONS, INC. ("CII").
WHEREAS, the Estate has agreed to make a loan (the "Loan") to Xxxxxxx
International, Ltd. ("Borrower") in the original principal amount of One Million
Seven Hundred One Thousand One Hundred Sixty-eight and 75/100 Dollars
($1,701,168.75), which Loan shall be evidenced by a $1,701,168.75 Promissory
Note dated the date hereof made by Borrower to the order of the Estate (the
"Estate Note"); and
WHEREAS, as security for the payment and performance of the Estate
Note, Borrower has granted to the Estate a valid and perfected security interest
in and lien on all of Borrower's tangible and intangible personal property,
whether now owned or hereafter acquired, and all products and proceeds thereof,
all as more fully set forth in a Security Agreement dated the date hereof (the
"Estate Security Agreement") between the Borrower and the Estate (the
"Collateral"); and
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WHEREAS, Borrower is indebted (the "CII Indebtedness") pursuant to a
certain Amendment and Restatement of Development Agreement made as of the 31st
day of December, 1995 between Borrower and CII ("CII Agreement"); and
WHEREAS, payment of the CII Indebtedness is secured by a valid and
perfected security interest in and lien on all of the Collateral, as
hereinbefore defined; and
WHEREAS, the Estate has conditioned its extension of the Loan to
Borrower upon CII subordinating its lien in the Collateral (other than in
Collateral consisting of Patents and Trademarks of Borrower; said Collateral
consisting of Debtor's tangible and intangible personal property other than
Patents and Trademarks referred to herein as "Subordinated Collateral") to the
Estate; and
WHEREAS, CII has agreed to subordinate its lien in the Subordinated
Collateral to the Estate;
NOW, THEREFORE, the Estate, CII and, by its consent and acknowledgment
hereto, Borrower, hereby agree as follows:
1. CII hereby subordinates its security interest and lien in the
Subordinated Collateral to the security interest and lien of the Estate therein.
Notwithstanding the date, time, manner or order of attachment or perfection of
the security interest and liens of the Estate or CII in any of the Subordinated
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Collateral, and notwithstanding any provisions of the Uniform Commercial Code,
any applicable law, any decision of any court or tribunal of competent
jurisdiction or whether the Estate or CII holds possession of all or any part of
the Subordinated Collateral, the lien and security interest of the Estate in and
to the Subordinated Collateral and all proceeds thereof shall be prior in right
to the lien and security interest of CII in and to the Subordinated Collateral.
2. After the occurrence of a default in Xxxxxxx'x obligations to the
Estate or CII which continues beyond any applicable grace period, the proceeds
from the disposition, sale or liquidation of any Subordinated Collateral shall
be applied, regardless of when the respective indebtedness of the Estate or CII
may be due, first to pay the Loan (including accrued interest, expenses and
other costs) and then, to pay all outstanding CII Indebtedness. At all times,
the Estate may exercise all of its rights and remedies under the Note and,
without limiting the foregoing may take all actions that it deems desirable to
collect the Loan as the case may be, including without limitation, the
repossessing foreclosing, selling, releasing or disposing of any Subordinated
Collateral and the commencement of, or joining with other creditors in the
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commencement of, bankruptcy or insolvency actions against Borrower.
3. Each of the Estate and CII shall give each other written notice of
any event of default or of the occurrence of any event of default under and as
defined in either the Note or the CII Agreement.
4. Unless otherwise agreed by the parties hereto, this Agreement shall
terminate upon the earlier of (a) the written agreement of all parties hereto,
or (b) the full and final satisfaction of either the Loan or CII Indebtedness.
5. All notices and other communications pursuant to this Agreement
shall be in writing and shall be deemed given when received as follows:
A. If to the Estate:
Co-Executors of the Estate of Xxxxxx X. Xxxxxx
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx
B. If to CII:
Connecticut Innovations, Inc.
000 Xxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Executive Director
6. This Agreement shall be governed by and construed in accordance with
the provisions of the laws of the State of
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Connecticut. This Agreement shall be effective as of October 2, 1998,
notwithstanding the actual date of execution.
7. CII hereby acknowledges that pursuant to a certain Subordination and
Intercreditor Agreement dated the date hereof by and among the Estate, Xxxxxxx
Partners, LLC ("Priority Lender") and Borrower, the Estate has subordinated its
lien and security interest in and to the Collateral to the lien and security
interest therein granted by Borrower to the Priority Lender. CII further
acknowledges that pursuant to a certain Subordination Agreement dated the date
hereof between CII, the Priority Lender and Borrower, CII has subordinated its
lien and security interest in and to the Subordinated Collateral to the lien and
security interest therein granted by Borrower to the Priority Lender.
8. This Agreement may be executed in any number of counterparts, each
of which shall be deemed and original, but all of which together shall
constitute one and the same instrument.
9. Telefacsimile transmissions of any executed original documents
and/or retransmission of any executed telefacsimile transmission shall be deemed
to be the same as the delivery of an executed original. At the request of any
party hereto, the other parties shall confirm telefacsimile transmissions by
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executing duplicate original documents and delivering the same to the requesting
party or parties.
[Rest of This Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
SIGNED, SEALED AND DELIVERED
In the Presence of: THE ESTATE OF
XXXXXX X. XXXXXX
[signature illegible] By: /s/ June X. Xxxxxx
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Name: June X. Xxxxxx,
Its Co-Executor
[signature illegible]
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Name:
/s/ Xxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxx, Xx.
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Name: Xxxxx X. Xxxx Xxxx X. Xxxxxxx, Xx.,
Its Co-Executor
/s/ Geert T.M.J. Raaijnakers
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Name: Geert T.M.J. Raaijnakers
[signature illegible] By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx,
Its Co-Executor
[signature illegible]
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Name:
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SIGNATURE PAGE SUBORDINATION AGREEMENT
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By: UNITED STATES TRUST
COMPANY OF NEW YORK,
Its Co-Executor
[signature illegible] By: /s/ Xxxxxx Xxxxx Xxxxxxxxxxx
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Name: Name: Xxxxxx Xxxxx Xxxxxxxxxxx
Title: Vice President
[signature illegible]
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Name:
CONNECTICUT INNOVATIONS, INC.
/s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxx Xxxxx Name: Xxxxxx Xxxxxxx
Title: President & Executive
Director
/s/ X. X. Xxxxxx
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Name: X. X. Xxxxxx
The undersigned acknowledges and accepts the foregoing as of the 2nd
day of October, 1998.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF: XXXXXXX INTERNATIONAL, LTD.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Name: Xxxxx X. Xxxxxxx
Title: President & CEO
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Name:
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SIGNATURE PAGE SUBORDINATION AGREEMENT
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STATE OF NEW HAMPSHIRE )
) ss:
COUNTY OF GRAFTON )
On this 1 day of October, 1998, before me, the undersigned officer,
personally appeared JUNE X. XXXXXX, personally known to me (or satisfactorily
proven) who acknowledged herself to be the person whose name subscribed to the
within instrument and acknowledged that she executed the same for the purposes
therein contained.
In witness whereof I hereunto set my hand.
/s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Notary Public
My Commission Expires Apr. 2, 0000
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On this 1st day of October, 1998, before me, the undersigned officer,
personally appeared XXXX X. XXXXXXX, XX., personally known to me (or
satisfactorily proven) who acknowledged himself to be the person whose name
subscribed to the within instrument and acknowledged that he executed the same
for the purposes therein contained.
In witness whereof I hereunto set my hand.
/s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Notary Public
My Commission Expires Mar. 30, 1999
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SIGNATURE PAGE SUBORDINATION AGREEMENT
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XXXXX XX XXX XXXX )
) ss:
COUNTY OF WESTCHESTER )
On this 1st day of October, 1998, before me, the undersigned officer,
personally appeared XXXXXX X. XXXXXX, personally known to me (or satisfactorily
proven) who acknowledged himself to be the person whose name subscribed to the
within instrument and acknowledged that he executed the same for the purposes
therein contained.
In witness whereof I hereunto set my hand.
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Notary Public
My Commission Expires July 6, 0000
XXXXX XX XXX XXXX )
) ss:
COUNTY OF )
On this 1 day of October, 1998, before me, the undersigned officer,
personally appeared Xxxxxx Xxxxx Xxxxxxxxxxx, Vice President of UNITED STATES
TRUST COMPANY OF NEW YORK, personally known to me (or satisfactorily proven) who
acknowledged himself to be the person whose name subscribed to the within
instrument and acknowledged that he executed the same for the purposes therein
contained.
In witness whereof I hereunto set my hand.
/s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Notary Public
My Commission Expires Nov. 13, 1999
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SIGNATURE PAGE SUBORDINATION AGREEMENT
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STATE OF CONNECTICUT )
) ss: Rocky Hill
COUNTY OF Hartford )
Personally appeared Xxxxxx X. Xxxxxxx, signer and sealer of the
foregoing instrument, personally known to me (or satisfactorily proven) who
acknowledged that he/she as President & Executive Director of CONNECTICUT
INNOVATIONS, INC., is duly authorized to execute said instrument and further
acknowledged the same to be his/her free act and deed as President & Executive
Director of CONNECTICUT INNOVATIONS, INC., and the free act and deed of said
CONNECTICUT INNOVATIONS, INC., before me, the undersigned officer.
/s/ Xxxxx X. Bieber
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Name: Xxxxx X. Bieber
Commissioner of the Superior Court
Notary Public
My Commission Expires Dec. 31, 0000
XXXXX XX XXXXXXXXXXX )
) ss. October __, 1998
COUNTY OF )
Personally appeared _________________________, signer and sealer of the
foregoing instrument personally known to me (or satisfactorily proven) who
acknowledged that he/she as ___________________ of XXXXXXX INTERNATIONAL, LTD.,
is duly authorized to execute said instrument and further acknowledged the same
to be his/her free act and deed as ___________________ of XXXXXXX INTERNATIONAL,
LTD., and the free act and deed of said XXXXXXX INTERNATIONAL, LTD., before me,
the undersigned officer
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Name:
Commissioner of the Superior Court
Notary Public
My Commission Expires
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SIGNATURE PAGE SUBORDINATION AGREEMENT
