EXHIBIT 10.8
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT, dated as of April 7, 2004, is made and
given by The estate of xxxxxxx x. xxxxxx (the "Junior Creditor"), in favor of
xxxxx x. xxxxx, and his endorsees, heirs and assigns (the "Senior Creditor").
RECITALS:
A. DOTRONIX, INC., a Minnesota corporation (the "Borrower") is or may
hereafter become indebted to the Senior Creditor.
B. The Borrower is indebted to the Junior Creditor under a Loan and
Security Agreement originally dated as of February 23, 2000, as amended (the
"Loan and Security Agreement"). As of the date of this Agreement, the Borrower
owes to the Junior Creditor the principal amount of $150,000 (the "Principal
Amount") under the Loan and Security Agreement, at an interest rate of 5% p.a.;
interest is due and payable monthly on the first business day of the following
month.
C. The Junior Creditor acknowledges that the loan or other extensions
of any financial accommodation or credit to the Borrower by the Senior Creditor
is of value to the Junior Creditor.
AGREEMENTS:
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged by the Junior Creditor, and in order to induce the Senior
Creditor to make loans or extend credit or any other financial accommodation to
or for the benefit of the Borrower, or to grant such renewals or extensions
thereof as the Senior Creditor may deem advisable, and to better secure the
Senior Creditor in respect of the foregoing, the Junior Creditor hereby agrees
as follows:
SECTION 1. DEFINITIONS, RULES OF CONSTRUCTION.
(a) For purpose of this Agreement, the following terms shall
have the following meanings:
"Bankruptcy Code" shall mean 11 U.S.C. ss. 101 et seq., as
amended from time to time.
"Borrower" shall have the meaning given to that term in
Recital A above, and shall include any successor (including a
debtor-in-possession under the Bankruptcy Code), assignee, receiver,
trustee or estate thereof.
"Default" shall mean any event which with the giving of notice
or lapse of time, or both, would become an Event of Default.
"Event of Default" shall mean (i) any failure of the Borrower
to pay when due (whether at the date scheduled therefor or earlier upon
acceleration), or when demanded (with respect to any obligation payable
on demand), any item constituting Senior Debt, or (ii) any event shall
occur or condition shall exist and shall continue for more than the
period of grace, if any, applicable thereto and shall have the effect
of causing, or permitting the Senior Creditor or any subsequent holder
of Senior Debt to cause, any item of Senior Debt to become due prior to
its stated maturity or to realize upon any collateral given as security
therefor.
"Permitted Payments" shall have the meaning given in Section 3
below.
44
"Person" shall mean an individual, corporation, association,
partnership, limited partnership, trust, organization, individual or
government or any governmental agency or any political subdivision
thereof.
"Security Interest" means any lien, pledge, mortgage,
encumbrance, charge or security interest of any kind whatsoever,
whether arising under a security instrument or as a matter of law,
judicial process or otherwise, or any agreement to grant any lien, or
security interest in, or to pledge, mortgage or encumber, any assets.
"Senior Debt" shall mean all liabilities and obligations of
the Borrower to the Senior Creditor howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter arising or incurred,
including, without limitation, any and all interest accruing on any of
the Senior Debt after the commencement of any proceedings referred to
in Section 5 below, notwithstanding any provision or rule of law which
might restrict the rights of the Senior Creditor, as against the
Borrower or anyone else, to collect such interest.
"Subordinated Debt" shall mean all obligations, liabilities
and indebtedness of the Borrower to the Junior Creditor, howsoever
arising or evidenced, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising or
incurred, under any written or unwritten agreement, provided, that such
Subordinated Debt may not exceed the Principal Amount plus interest in
the amount of $645.83 outstanding that is payable as of the date of
this Agreement.
(b) In this Agreement, in the computation of a period of time
from a specified date to a later specified date, unless otherwise
stated the word "from" means "from and including" and the word "to" or
"until" each means "to but excluding."
(c) Other terms may be defined in other parts of this
Agreement. All references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments
thereto or changes therein entered into in accordance with their
respective terms, and all references to Persons shall be deemed to
include their permitted successors, heirs and assigns. Unless the
context in which used herein otherwise clearly requires, "or" has the
inclusive meaning represented by the phrase "and/or." All
incorporations by reference of covenants, terms, definitions or other
provisions from other agreements are incorporated into this Agreement
as if such provisions were fully set forth herein, and include all
necessary information and related provisions from such other
agreements, and all such covenants, terms, definitions or other
provisions from other agreements incorporated into this Agreement by
reference shall survive any termination of such other agreements until
the Senior Debt has been indefeasibly paid in full and all financing
arrangements between the Borrower and the Senior Creditor shall have
been terminated.
SECTION 2. STANDBY; SUBORDINATION. The payment and performance of the
Subordinated Debt is hereby subordinated to the payment and performance in full
of the Senior Debt, and, except as set forth in Section 3 below, the Junior
Creditor will not ask, demand, xxx for, take or receive from the Borrower or any
other Person liable for all or any part of the Senior Debt, by setoff or in any
other manner, the whole or any part of the Subordinated Debt, or any monies
which may now or hereafter be owing in respect of the Subordinated Debt (whether
such amounts represent principal or interest, or obligations which are due or
not due, direct or indirect, absolute or contingent), including, without
limitation, taking any additional security for any of the foregoing, or the
taking of any negotiable
45
instrument therefor, unless and until all of the Senior Debt shall have been
indefeasibly paid and satisfied in full and all financing arrangements between
the Borrower and Senior Creditor have been terminated. The Junior Creditor
warrants and represents and agrees that (a) all Security Interests of the Junior
Creditor in any assets of the Borrower or any assets securing the Senior Debt
shall and hereby are subordinated to the rights and interests of the Senior
Creditor, if any, in those assets, (ii) the Junior Creditor shall have no right
to possession of any such assets or to foreclose upon any such assets, whether
by judicial action or otherwise, unless and until all the Senior Debt shall have
been indefeasibly paid and satisfied in full and all financing arrangements
between the Borrower and Senior Creditor have been terminated, and (iii) at the
request of the Senior Creditor, the Junior Creditor shall authorize, execute or
deliver to the Senior Creditor such termination statements and releases as the
Senior Creditor shall reasonably request to release the Junior Creditor's
Security Interest in or against such property. The Junior Creditor, prior to the
indefeasible payment in full and discharge of the Senior Debt and the
termination of all financing arrangements between the Borrower and the Senior
Creditor, shall have no right to enforce any claim with respect to the
Subordinated Debt, or to take any action against the Borrower or the property of
the Borrower or of any other Person liable for all or any part of the Senior
Debt for the benefit of the Borrower. The Junior Creditor acknowledges and
agrees that, to the extent the terms and provisions of this Agreement are
inconsistent with any agreement or understanding between the Junior Creditor and
the Borrower, such agreement or understanding shall be subject to this
Agreement.
SECTION 3. PERMITTED PAYMENTS. Notwithstanding the provisions of
Section 2 above, until the Senior Creditor gives the Junior Creditor written
notice (in the manner set forth below) of the occurrence of an Event of Default
or a Default, and provided that:
(i) there shall not then exist any breach of this
Agreement by the Junior Creditor which has not been
waived, in writing, by the Senior Creditor,
(ii) at the time of the payment described below no Event
of Default exists and is continuing,
(iii) the payment described below, if made, would not give
rise to the occurrence of any Event of Default, and
(iv) none of the events described in Section 5 has
occurred,
Borrower may pay to the Junior Creditor, and the Junior Creditor may accept from
Borrower, interest payments when due (without acceleration) with respect to
Subordinated Debt ("Permitted Payments").
SECTION 4. SUBORDINATED DEBT OWED ONLY TO THE JUNIOR CREDITOR. The
Junior Creditor warrants and represents that the Junior Creditor has not
previously assigned any interest in the Subordinated Debt, that no other Person
owns an interest in the Subordinated Debt (whether as joint holders of
Subordinated Debt, participants or otherwise) and that the entire Subordinated
Debt is owing only to the Junior Creditor. The Junior Creditor further covenants
that the entire Subordinated Debt shall continue to be owing only to the Junior
Creditor unless it is assigned to a Person who agrees with the Senior Creditor
to be bound by the subordination provisions set forth herein.
SECTION 5. PRIORITY. In the event of (a) any distribution, division, or
application, partial or complete, voluntary or involuntary, by operation of law
or otherwise, of all or any part of the assets of the Borrower or the proceeds
thereof to the creditors of the Borrower or to their claims against the
Borrower, or (b) any readjustment of the debt or obligations of the Borrower,
whether by reason of
46
liquidation, bankruptcy, arrangement, receivership, assignment for the benefit
of creditors or any other action or proceeding involving the readjustment of all
or any part of the Senior Debt or Subordinated Debt, or the application of the
assets of the Borrower to the payment or liquidation thereof, or (c) the
dissolution or other winding up of the business of the Borrower, or (d) the sale
of all or substantially all of the assets of the Borrower, then, and in any such
event, the Senior Creditor shall be entitled to receive indefeasible payment in
full of all of the Senior Debt prior to the payment of all or any part of the
Subordinated Debt.
SECTION 6. GRANT OF AUTHORITY TO SENIOR CREDITOR. In order to enable
the Senior Creditor to enforce his rights hereunder in any of the actions or
proceedings described in Section 5, the Senior Creditor is hereby irrevocably
authorized and empowered, in his discretion, to file and present for and on
behalf of the Junior Creditor such proofs of claims or other motions or
pleadings as the Senior Creditor may deem expedient or proper to establish the
Senior Creditor's entitlement of payment from, or on behalf of, the Junior
Creditor with respect to the Subordinated Debt and to vote such proofs of claims
in any such proceeding and to demand, xxx for, receive and collect any and all
dividends or other payments or disbursements made thereon in whatever form the
same may be paid or issued and to apply the same on account of any of the Senior
Debt. The Junior Creditor irrevocably authorizes and empowers the Senior
Creditor to demand, xxx for, collect and receive each of the payments and
distributions described in Section 5 above and give acquittance therefor and to
file claims and take such other actions, in the Senior Creditor's own name or in
the name of the Junior Creditor or otherwise, as the Senior Creditor may deem
necessary or advisable for the enforcement of this Agreement. To the extent that
payments of distributions are made in property other than cash, the Junior
Creditor authorizes the Senior Creditor to sell such property to such buyers and
on such terms as the Senior Creditor, in his sole discretion, shall determine.
The Junior Creditor will execute and deliver to the Senior Creditor such powers
of attorney, assignments and other instruments or documents, including
debentures (together with such assignments or endorsements as the Senior
Creditor shall deem necessary), as may be reasonably requested by the Senior
Creditor in order to enable the Senior Creditor to enforce any and all claims
upon or with respect to any or all of the Subordinated Debt and to collect and
receive any and all payments and distributions which may be payable or
deliverable at any time upon or with respect to the Subordinated Debt, all for
the Senior Creditor's own benefit.
SECTION 7. PAYMENTS RECEIVED BY THE JUNIOR CREDITOR. Except for
Permitted Payments, if the Junior Creditor receives any value, property,
payment, distribution, security, instrument or proceeds thereof upon or with
respect to the Subordinated Debt prior to the indefeasible payment in full of
the Senior Debt and termination of all financing arrangements between the
Borrower and the Senior Creditor, the Junior Creditor shall receive and hold the
same in trust, as trustee, for the benefit of the Senior Creditor and shall
forthwith deliver the same to the Senior Creditor in precisely the form received
(except for the endorsement or assignment by the Junior Creditor where
necessary), for application on any of the Senior Debt, due or not due and, until
so delivered, the same shall be held in trust by the Junior Creditor as the
property of the Senior Creditor. In the event of the failure of the Junior
Creditor to make any such endorsement or assignment to the Senior Creditor is
hereby irrevocably authorized to make the same.
SECTION 8. CONTINUING NATURE OF SUBORDINATION. This Agreement shall be
effective and may not be terminated or otherwise revoked by the Junior Creditor
until the Senior Debt shall have been fully paid and discharged and all
financing arrangements between the Borrower and the Senior Creditor have been
terminated. This is a continuing agreement of subordination and the Senior
Creditor may continue, at any time and without notice to the Junior Creditor, to
extend credit or other financial accommodations and loan monies to or for the
benefit of the Borrower in reliance hereon. No obligation of the Junior Creditor
hereunder shall be affected by the dissolution, liquidation, death or
47
incapacity of, or written revocation by, the Junior Creditor or any other
subordinated party, pledgor, endorser, or guarantor, if any.
SECTION 9. ADDITIONAL AGREEMENTS BETWEEN SENIOR CREDITOR AND BORROWER.
The Senior Creditor, at any time and from time to time, may enter into such
agreement or agreements with the Borrower as the Senior Creditor may deem
proper, increasing the amount of, extending the time of payment of or renewing
or otherwise altering the terms of all or any of the Senior Debt or affecting
any security underlying any or all of the Senior Debt, and may exchange, sell,
release, surrender or otherwise deal with any such security, without in any way
thereby impairing or affecting this Agreement.
SECTION 10. BANKRUPTCY ISSUES. If the Borrower becomes the subject of
proceedings under the Bankruptcy Code and if the Senior Creditor desires to
permit the use of cash collateral or to provide financing to the Borrower under
either Section 363 or Section 364 of the Bankruptcy Code, the Junior Creditor
agrees that adequate notice of such financing to the Junior Creditor, if
required under applicable law, shall have been provided if the Junior Creditor
receives notice two (2) business days prior to entry of any order approving such
cash collateral usage or financing. Notice of a proposed financing or use of
cash collateral shall be deemed given upon the sending of such notice to the
Junior Creditor in the manner specified in Section 16, below. All allocations of
payments between the Senior Creditor and the Junior Creditor shall continue to
be made after the filing of a petition under the Bankruptcy Code on the basis
provided in this Agreement. In the event that the Junior Creditor at any time
acquires any security for the Subordinated Debt, the Junior Creditor agrees not
to assert any right the Junior Creditor may have to "adequate protection" of the
Junior Creditor's interest in such security in any Bankruptcy proceeding or to
seek relief from automatic stay, without the prior written consent of the Senior
Creditor. The Junior Credit shall promptly deliver any form of adequate
projection it receives or the value thereof to the Senior Creditor. The Junior
Creditor waives any claim the Junior Creditor may now or hereafter have against
the Senior Creditor arising out of the Senior Creditor's election, in any
proceeding instituted under Chapter 11 of the Bankruptcy Code, of the
application of Section 1111(b)(2) of the Bankruptcy Code, and/or any borrowing
or grant of a security interest under Section 364 of the Bankruptcy Code by the
Borrower, as debtor in possession, or by a trustee. To the extent that the
Senior Creditor receives payments on, or proceeds of any collateral for, the
Senior Debt which are subsequently avoided, invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any Bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or proceeds
received, the Senior Debt, or part thereof, intended to be satisfied shall be
revived and continue in full force and effect as if such payments or proceeds
had not been received by the Senior Creditor.
SECTION 11. INSTRUMENT LEGEND; NO AMENDMENTS TO SUBORDINATED
INSTRUMENTS. Every instrument evidencing Subordinated Debt shall be inscribed
with a legend conspicuously indicating that payment thereof is subordinated to
the claims of the Senior Creditor pursuant to the terms of this Agreement. Upon
request after the occurrence of an Event of Default, the original of every
instrument evidencing Subordinated Debt shall be promptly delivered to the
Senior Creditor. The Junior Creditor will not agree to any amendment,
restatement or other modification of any instrument evidencing Subordinated
Debt, without the prior written consent of the Senior Creditor.
SECTION 12. WAIVERS. The Senior Debt shall be deemed to have been made
or incurred in reliance upon this Agreement. The Junior Creditor expressly
waives all notice of the acceptance by the Senior Creditor of the subordination
and other provisions of this Agreement and all other notices not specifically
required pursuant to the terms of this Agreement whatsoever, and the Junior
Creditor expressly waives reliance by the Senior Creditor upon the subordination
and other agreements as herein
48
provided. The Junior Creditor agrees that the Senior Creditor has made no
warranties or representations with respect to the due execution, legality,
validity, completeness or enforceability of any agreement evidencing any Senior
Debt, or the collectability of the Senior Debt, and that the Senior Creditor
shall be entitled to manage and supervise his loans and other financial
accommodations to the Borrower without regard to the existence of any rights
that the Junior Creditor may now or hereafter have in or to any of the assets of
the Borrower. The Junior Creditor agrees that the Senior Creditor shall have no
liability to the Junior Creditor for, and waives any claim which the Junior
Creditor may now or hereafter have against, the Senior Creditor arising out of
any and all actions which the Senior Creditor in good faith takes or omits to
take (including, without limitation, actions with respect to any security for
the Senior Debt, actions with respect to the occurrence of an Event of Default,
actions with respect to the foreclosure upon, sale, release, or depreciation of,
or failure to realize upon, any security for the Senior Debt and actions with
respect to the collection of any claim for all or any part of the Senior Debt
from any guarantor or other party) with respect to or any other agreement
related to any Senior Debt or to the collection of the Senior Debt or the
valuation, use, protection or release of any security for the Senior Debt.
SECTION 13. SENIOR CREDITOR'S WAIVERS. No waiver shall be deemed to be
made by the Senior Creditor of any of his rights hereunder unless the same shall
be in writing signed on behalf of the Senior Creditor, and each waiver, if any,
shall be a waiver only with respect to the specific instance involved and shall
in no way impair the rights of the Senior Creditor or the obligations of the
Junior Creditor to the Senior Creditor in any other respect at any other time.
SECTION 14. FINANCIAL CONDITION OF BORROWER; OTHER ACTIONS BY THE
SENIOR CREDITOR. The Junior Creditor hereby assumes responsibility for keeping
informed of the financial condition of the Borrower, any and all endorsers and
any and all guarantors of the Subordinated Debt and of all other circumstances
bearing upon the risk of nonpayment of the Senior Debt and/or the Subordinated
Debt that diligent inquiry would reveal. The Junior Creditor hereby agrees that
the Senior Creditor shall have no duty to advise the Junior Creditor of
information known to the Senior Creditor regarding such condition or any such
circumstances. In the event the Senior Creditor, in his sole discretion,
undertakes, at any time or from time to time, to provide any such information to
the Junior Creditor, the Senior Creditor shall be under no obligation (i) to
provide any such information to the Junior Creditor on any subsequent occasion,
(ii) to undertake any investigation not a part of his regular business routine,
or (iii) to disclose any information which, pursuant to his usual practices, the
Senior Creditor wishes to maintain confidential. The Junior Creditor hereby
agrees that all payments received by the Senior Creditor may be applied, in
whole or in part, to any of the Senior Debt, as the Senior Creditor, in his sole
discretion, deems appropriate and assents to any extension or postponement of
the time of payment of the Senior Debt or to any other indulgence with respect
thereto, to any substitution, exchange or release of collateral which may at any
time secure the Senior Debt and to the addition or release of any other Person
primarily or secondarily liable therefor.
SECTION 15. SUBROGATION. When the Senior Debt shall have been fully
paid and discharged and all financing arrangements between the Borrower and the
Senior Creditor have been terminated, the Junior Creditor shall be subrogated to
the rights of the Senior Creditor to receive payments or distribution of assets
of the Borrower made on such Senior Debt until the principal of and premium, if
any, and interest on (and any other amounts due with respect to) the
Subordinated Debt shall be paid in full. For the purposes of such subrogation,
no payments or distributions to the Senior Creditor of any cash, property or
securities to which the Junior Creditor would be entitled except for these
provisions shall, as between the Borrower, its creditors other than the Senior
Creditor, and the Junior Creditor, be deemed to be a payment by the Borrower to
or on account of Senior Debt, it being understood that these
49
provisions in this Section are used, and are intended, solely for the purpose of
defining the relative rights of the Junior Creditor, on the one hand, and the
Senior Creditor, on the other hand.
SECTION 16. NOTICES. All communications and notices provided under this
Agreement to any party shall be given in writing by manual delivery, facsimile
transmission, overnight courier or United States first class mail to such
party's address shown on the signature page hereof, or to any party at such
other address as may be designated by such party in a notice to the other
parties. All periods of notice shall be measured from the date of delivery
thereof if manually delivered, from the date of sending if sent by facsimile
transmission, from the first business day after the date of sending if sent by
overnight courier, or from four days after the date of mailing if mailed.
SECTION 17. GOVERNING LAW AND CONSTRUCTION. THE VALIDITY, CONSTRUCTION
AND ENFORCEABILITY OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES
THEREOF.
SECTION 18. CONSENT TO JURISDICTION. AT THE OPTION OF THE SENIOR
CREDITOR, THIS AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE
COURT SITTING IN HENNEPIN COUNTY, MINNESOTA; AND THE JUNIOR CREDITOR CONSENTS TO
THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE
IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT THE JUNIOR CREDITOR COMMENCES ANY
ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY
ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT,
THE SENIOR CREDITOR AT HIS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED
TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER
CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
SECTION 19. WAIVER OF JURY TRIAL. THE JUNIOR CREDITOR, AND THE SENIOR
CREDITOR BY THEIR ACCEPTANCE HEREOF, IRREVOCABLY WAIVE ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT OR DOCUMENT DELIVERED OR WHICH
MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY CREDIT
RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
SECTION 20. SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
SECTION 21. MISCELLANEOUS.
(a) This Agreement and the terms, covenants and conditions
hereof shall inure to the benefit of the Senior Creditor and his heirs
and assigns. Nothing contained in this Agreement,
50
expressed or implied, is intended to confer upon any Person other than
the parties hereto and thereto any rights, remedies, obligations or
liabilities hereunder or thereunder.
(b) This Agreement sets forth the entire understanding of the
parties hereto relating to the subject matter hereof, and all prior
understandings and negotiations, written or oral, are merged into and
superseded by this Agreement. Any modification, amendment or waiver of
this Agreement or any provision herein shall be binding upon the Senior
Creditor only if contained in a writing signed by or on behalf of the
Senior Creditor. No failure on the part of the Senior Creditor to
exercise and no delay in exercising any power or right hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise
of any power or right preclude any other or further exercise thereof or
the exercise of any other power or right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
(c) The Junior Creditor hereby acknowledges that (i) it has
been advised by counsel in the negotiation, execution and delivery of
this Agreement, (ii) the Senior Creditor has no fiduciary relationship
to the Junior Creditor, and (iii) no joint venture exists between the
Junior Creditor and the Senior Creditor.
(d) The section titles contained in this Agreement are and
shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
(e) All covenants, agreements, representations and warranties
made in this Agreement and in any certificates or other papers
delivered by or on behalf of the Junior Creditor pursuant hereto shall
be deemed to have been relied upon by the Senior Creditor and shall
survive the execution and delivery of this Agreement, and shall
continue in full force and effect so long as any Senior Debt remains
outstanding and unpaid or any financing arrangement between the
Borrower and the Senior Creditor remains in effect. All statements of
fact relating to the Junior Creditor contained in any certificate or
other paper delivered to the Senior Creditor at any time after the date
hereof by or on behalf of the Junior Creditor pursuant hereto or in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the undersigned hereunder.
(f) This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this
Agreement by signing any such counterpart.
IN WITNESS WHEREOF, this Subordination Agreement has been signed as of
the date first set forth above.
The Estate of Xxxxxxx X. Xxxxxx
By its Personal Representatives
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
/S/ XXXX X. XXXXXX
Xxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Address for Notice:
-------------------
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
SENIOR CREDITOR
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Address for Notice:
-------------------
0000 Xxxxx 000xx Xxxxxx
Xxxxxxxxxx, XX 00000
Copy to:
Xxxxxx X. Xxxxxxxx
0 Xxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
ACCEPTANCE AND ACKNOWLEDGMENT
The Borrower named above hereby accepts, and acknowledges receipt of a
copy of, the foregoing Subordination Agreement and agrees that it will not pay
any of the "Subordinated Debt" (as defined in the foregoing Agreement) or grant
any security therefor, except as the foregoing Agreement provides.
DOTRONIX, INC.
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its Chief Financial Officer
51
