Exhibit 15
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (the "Agreement"), dated as of this_____ day
of July, 1997, is made by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital Corporation ("Creditor'), with
an office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and NationsCredit
Commercial Corporation, through its NationsCredit Commercial Funding Division
("Nations"), with an office at 1177 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
1. BACKGROUND.
(a) Fix-Corp International, Inc., a Delaware corporation ("Fix-Corp"),
FIXCOR Industries, Inc., a Delaware corporation ("FIXCOR"), and Palletech, Inc.,
a Delaware corporation ("Palletech"), have granted to Creditor liens upon, and
security interests in, the Collateral (as defined below) to secure loans and
advances that have been or hereafter may be made by Creditor to any of FIXCOR,
Fix-Corp and Palletech.
(b) Palletech, FIXCOR and Fix-Corp (individually each an "Obligor", and
collectively "Obligors") have granted to Nations liens upon, and security
interests in, the Collateral to secure loans and advances that have been or
hereafter may be made by Nations to FIXCOR and guaranties by Palletech and
Fix-Corp made in favor of Nations with respect to such loans and advances.
(c) Nations and Creditor desire to agree between themselves on their
relative rights, priorities and interests in the Collateral and certain other
matters as set forth herein.
Therefore, in consideration of the foregoing and the mutual covenants set
forth below, the parties hereby agree as follows.
2. DEFINITIONS. For purposes of this Agreement:
(a) "Collateral" means any existing or hereafter acquired property of each
Obligor, whether realty or personalty, and whether tangible or intangible,
including without limitation accounts, inventory, general intangibles,
equipment, documents, instruments and chattel paper, together with all proceeds
of the foregoing.
(b) "Creditor's Debt" means all obligations, liabilities and indebtedness
from time to time owing by each Obligor to Creditor under Creditor's Documents
or otherwise, including without limitation the outstanding balance of principal
and accrued interest (including without limitation any interest accruing after
the commencement of insolvency proceedings with respect to any Obligor, whether
or not such interest is allowed as a claim in such proceedings), fees and
premiums from time to time owing by each Obligor to Creditor pursuant to
Creditor's Documents and all costs and expenses (including reasonable attorneys'
fees) owing by each Obligor to Creditor under Creditor's Documents.
(c) "Creditor's Documents" means any and all agreements, instruments and
documents, together with any amendments, renewals, extensions or supplements
thereto or replacements thereof, now or hereafter evidencing or securing a
financing arrangement or arrangements between Creditor and each Obligor,
including without limitation the Term Note of even date herewith executed by the
Obligors in favor of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Loan and Security Agreement of even
date herewith executed by the Obligors in favor of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
(d) "Creditor Senior Collateral" means the Pallet Equipment, all proceeds
of the Pallet Equipment and any right to payment for the inventory created
solely through the use of the Pallet Equipment, which is not evidenced by an
instrument (as defined in the Uniform Commercial Code as adopted and in effect
at such time in the State of New York) or chattel paper (as defined in the
Uniform Commercial Code as adopted and in effect at such time in the State of
New York) ("Pallet Account Receivables"), PROVIDED THAT, if and when Nations
notifies Creditor in writing that either (i) the Pallet Account Receivables are
to be included in the definition of "Eligible Accounts" (pursuant to the Loan
Agreement (defined below)) or (ii) Nations intends to make loans to Palletech
directly under any circumstances, such Pallet Account Receivables shall
immediately cease to be Creditor Senior Collateral and shall become Nations
Senior Collateral (as defined below) indefinitely.
(e) "Nations' Debt" means all obligations, liabilities and indebtedness
from time to time owing by each Obligor to Nations under Nations' Documents or
otherwise, including without limitation the outstanding balance of principal and
accrued interest (including without limitation any interest accruing after the
commencement of insolvency proceedings with respect to any Obligor, whether or
not such interest is allowed as a claim in such proceedings), fees and premiums
from time to time owing by each Obligor to Nations pursuant to Nations'
Documents and all costs and expenses (including reasonable attorneys' fees)
owing by each Obligor to Nations under Nations' Documents.
(f) "Nations' Documents" means any and all agreements, instruments and
documents, together with any amendments, renewals, extensions or supplements
thereto or replacements thereof, evidencing or securing a financing arrangement
or arrangements between Nations and each Obligor, including without limitation
the Loan and Security Agreement dated as of May 14, 1997 between Nations and
FIXCOR (the "Loan Agreement"), the Security Agreement dated as of May 14, 1997
between Nations and Fix-Corp and the Security Agreement dated July ____ 1997
between Nations and Palletech, all as amended or supplemented from time to time.
(g) "Nations Senior Collateral" means all of the Collateral other than the
Pallet Equipment, the Pallet Account Receivables (pursuant to the proviso in (d)
above), together with all proceeds of the foregoing.
(h) "Pallet Equipment" means the equipment purchased with advances from
Creditor under the Creditor's Documents, including but not limited to the
equipment described on EXHIBIT A attached hereto.
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Each term used in this Agreement and not otherwise defined herein shall
have the meaning ascribed to such term in the Uniform Commercial Code of the
State of New York.
3. PRIORITIES: SUBORDINATION: PAYMENTS: STANDBY.
(a) Nations and Creditor each agree that regardless of the time or order
of attachment, or the time, order or manner of perfection, or the time or order
of filing or recording of financing statements or mortgages or deeds of trust,
Nations' lien on and security interest in the Nations Senior Collateral shall be
senior to that of Creditor in the Nations Senior Collateral. Creditor agrees to
subordinate, and does hereby subordinate, any security interests and liens it
now or hereafter has in and upon the Nations Senior Collateral under Creditor's
Documents or otherwise to the security interests and liens of Nations in and
upon the Nations Senior Collateral.
(b) Nations and Creditor each agree that regardless of the time or order
of attachment, or the time, order or manner of perfection, or the time or order
of filing or recording of financing statements or mortgages or deeds of trust,
Creditor's lien on and security interest in the Creditor Senior Collateral shall
be senior to that of Nations in the Creditor Senior Collateral. Nations agrees
to subordinate, and does hereby subordinate, any security interests and liens it
now or hereafter has in and upon the Creditor Senior Collateral under Nations'
Documents or otherwise to the security interests and liens of Creditor in and
upon the Creditor Senior Collateral.
(c) Regardless of whether a default exists under any of Creditor's
Documents, Creditor shall not, without the prior written consent of Nations: (i)
take any action to enforce any security interest in or lien on, or exercise any
other rights with respect to, the Nations Senior Collateral (including without
limitation any action to commence a foreclosure action with respect to the
Nations Senior Collateral or exercise any right Creditor may have to notify any
account debtor of any Obligor or otherwise attempt to collect payment from any
account debtor) until all of Nations' Documents have been terminated and all of
Nations' Debt has been fully paid and satisfied in cash; PROVIDED that, subject
to all of Nations' rights under this Agreement, including without limitation
Nations' prior right to all proceeds derived from the sale or other disposition
of the Nations Senior Collateral, in the event that Nations has instituted and
is then maintaining any proceeding or action to foreclose Nations' liens and
security interests with respect to any of the Nations Senior Collateral,
Creditor may foreclose Creditor's liens and security interests in such
Collateral in such proceeding initiated by Nations, so long as Creditor does not
in any event notify account debtors of any Obligor or interfere with or impede
such action or proceeding of Nations.
(d) Regardless of whether a default exists under any of Nations'
Documents, Nations shall not, without the prior written consent of Creditor,
take any action to enforce any security interest in or lien on, or exercise any
other rights with respect to, the Creditor Senior Collateral (including without
limitation any action to commence a foreclosure action with respect to the
Creditor Senior Collateral) until all of the Creditor's Documents have been
terminated and all of Creditor's Debt has been fully paid and satisfied in cash;
PROVIDED that, subject to all of Creditor's rights under this Agreement,
including without limitation Creditor's prior right to all proceeds derived from
the sale or other disposition of the Creditor Senior Collateral, in the event
that Creditor has instituted and is then maintaining any proceeding or action to
foreclose Creditor's
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liens and security interests with respect to any of the Creditor Senior
Collateral, Nations may foreclose Nations' liens and security interests in such
Collateral in such proceeding initiated by Creditor so long as Nations does not
in any event interfere with or impede such action or proceeding of Creditor.
(e) In the event of default by any Obligor in the payment or performance
of any of its liabilities or obligations to Nations, Creditor agrees not to
restrict or prohibit the use of the Pallet Equipment to complete the manufacture
of any Obligor's inventory; PROVIDED that Creditor can demand that such use
ceases no earlier than sixty (60) days following the institution of a
foreclosure action by Creditor permitted hereunder with respect to the Pallet
Equipment.
(f) In the event any Obligor desires to sell any of the Nations Senior
Collateral and Nations consents to such sale, such Obligor or Nations shall
endeavor to provide at least two (2) days' prior written notice of such sale to
Creditor and Creditor shall be deemed to have consented to such sale free and
clear of any liens and security interests of Creditor in such Nations Senior
Collateral and Creditor agrees that any purchaser of any Nations Collateral may
rely on this Agreement as evidence of Creditor's consent to such sale free and
clear of any liens and security interests of Creditor in such Nations Senior
Collateral; PROVIDED, that the proceeds of such sale shall be distributed as set
forth in Section 3(h) below. Creditor agrees to execute such releases with
respect to the Nations Senior Collateral to be sold as such Obligor or as
Nations requests; PROVIDED that the failure of Creditor to execute such releases
shall not affect the right of the purchaser of such Nations Senior Collateral to
rely on this Agreement. In the event Creditor receives any proceeds of Nations
Senior Collateral to which Nations is entitled under Nations' Documents,
Creditor shall hold such proceeds in trust and promptly remit such proceeds in
the same form received to Nations unless Nations has been paid in full in cash.
(g) In the event any Obligor desires to sell any of the Creditor Senior
Collateral and Creditor consents to such sale, such Obligor or Creditor shall
endeavor to provide at least two (2) days' prior written notice of such sale and
Nations shall be deemed to have consented to such sale free and clear of any
liens and security interests of Nations in such Creditor Senior Collateral and
Nations agrees that any purchaser of any Creditor Senior Collateral may rely on
this Agreement as evidence of Nations' consent to such sale free and clear of
any liens and security interests of Nations in such Creditor Senior Collateral;
PROVIDED, that the proceeds of such sale shall be distributed as set forth in
Section 3(h) below. Nations agrees to execute such releases with respect to the
Creditor Senior Collateral to be sold as such Obligor or as Creditor requests;
PROVIDED, that the failure of Nations to execute such releases shall not affect
the right of the purchasers of such Creditor Senior Collateral to rely on this
Agreement. In the event Nations receives any proceeds of Creditor Senior
Collateral to which Creditor is entitled under Creditor's Documents, Nations
shall hold such proceeds in trust and promptly remit such proceeds in the same
form received to Creditor unless Creditor has been paid in full in cash.
(h) All proceeds of the Nations Senior Collateral shall be applied first,
to Nations' Debt, and after the indefeasible payment in cash of Nations' Debt,
to Creditor's Debt. All proceeds of the Creditor Senior Collateral shall be
applied first, to Creditor's Debt, and after the indefeasible payment in full in
cash of Creditor's Debt, to Nations' Debt. If Creditor receives any
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proceeds of Nations Senior Collateral which are to be applied to Nations' Debt
as provided above, Creditor shall hold such proceeds in trust, and deliver such
proceeds in the same form received to Nations, and if Nations receives any
proceeds of Creditor Senior Collateral which are to be applied to Creditor's
Debt as provided above, Nations shall hold such proceeds in trust and deliver
such proceeds in the same form received to Creditor.
(i) Neither party hereto shall contest the validity, perfection, priority
(as established pursuant to the terms of this Agreement) or enforceability of
any lien or security interest on or in the Collateral granted by each Obligor to
the other party hereto.
4. REPRESENTATIONS WARRANTIES AND COVENANTS. Nations and Creditor each
represent, warrant and covenant that it has not assigned or transferred, and
agrees that it will not assign or transfer at any time this Agreement remains in
effect, any right, claim or interest of any kind in or to the Collateral, unless
such right, claim and interest remains subject to this Agreement.
5. AMENDMENTS TO DOCUMENTS. Creditor agrees that Nations may at any time
or times, in its discretion, (i) renew or extend the time of payment of Nations'
Debt, (ii) waive or release any collateral or guaranties which may be held
therefor, or (iii) modify or amend Nations' Documents or Nations' Debt in any
manner, in each case without further consent from Creditor or any other party,
and without impairing or affecting this Agreement or any of Nations' rights
hereunder. Nations agrees that Creditor may at any time or times, in its
discretion, (i) renew or extend the time of payment of Creditor's Debt, (ii)
waive or release any collateral or guaranties which may be held therefor, or
(iii) modify or amend Creditor's Documents or Creditor's Debt in any manner, in
each case without further consent from Nations or any other party, and without
impairing or affecting this Agreement or any of Creditor's rights hereunder.
6. CREDITOR'S WAIVERS. Creditor expressly waives all notice of the
acceptance by Nations of the subordination and other provisions of this
Agreement and all the notices not specifically required pursuant to the terms of
this Agreement whatsoever and Creditor expressly waives reliance by Nations upon
the subordination and other agreements as herein provided. Creditor agrees that
Nations (i) has made no warranties or representations with respect to the
legality, validity, completeness, enforceability or the collectibility of
Nations' Debt or any liens or security interests securing Nations' Debt, and
(ii) shall be entitled to manage and supervise its loans to each Obligor in
accordance with applicable law and its usual practices with each Obligor without
affecting the validity or enforceability of this Agreement, modified from time
to time as it deems appropriate under the circumstances, without regard to the
existence of any rights that Creditor may now or hereafter have in or to any of
the assets of each Obligor. The validity and enforceability of this Agreement
shall not be affected by (a) any and all actions which Nations takes or omits to
take (including without limitation actions with respect to the creation,
perfection or continuation of liens or security interests in any Collateral,
actions with respect to the occurrence of an Event of Default under Nations'
Documents, actions with respect to the foreclosure upon, sale, release or
depreciation of, or failure to realize upon any of the Collateral), (b) Nations'
election, in any proceeding instituted under Chapter 11 of Title 11 of the
United States Code (11 U.S.C. Section 101 ET SEQ.) (the "Bankruptcy Code"), of
the application of Section 111l(b)(2) of the Bankruptcy Code, and/or (c) any
borrowing or grant of a security interest under
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Section 363 or 364 of the Bankruptcy Code by any Obligor, as debtor in
possession with respect to the Nations Senior Collateral. In that regard,
Creditor agrees that (A) if any Obligor desires to use cash collateral under
Section 363 of the Bankruptcy Code and Nations consents to such use, Creditor
will also consent to such use without asserting any objection of any kind
(including an objection on the grounds of failure to provide adequate protection
for Creditor's junior lien on such Nations Senior Collateral), and (B) if such
Obligor desires to obtain credit from Nations under Section 364 of the
Bankruptcy Code to be secured by the Nations Senior Collateral, Creditor will
consent to such credit without asserting any objection of any kind (including an
objection on the grounds of failure to provide adequate protection for
Creditor's junior lien on such Nations Senior Collateral).
7. NATIONS' WAIVERS. Nations expressly waives all notice of the
acceptance by Creditor of the subordination and other provisions of this
Agreement and all the notices not specifically required pursuant to the terms of
this Agreement whatsoever and Nations expressly waives reliance by Creditor upon
the subordination and other agreements as herein provided. Nations agrees that
Creditor (i) has made no warranties or representations with respect to the
legality, validity, completeness, enforceability or the collectibility of
Creditor's Debt or any liens or security interests securing Creditor's Debt, and
(ii) shall be entitled to manage and supervise its loans to each Obligor in
accordance with applicable law and its usual practices with each Obligor without
affecting the validity or enforceability of this Agreement, modified from time
to time as it deems appropriate under the circumstances, without regard to the
existence of any rights that Nations may now or hereafter have in or to any of
the assets of each Obligor. The validity and enforceability of this Agreement
shall not be affected by (a) any and all actions which Creditor takes or omits
to take (including without limitation actions with respect to the creation,
perfection or continuation of liens or security interests in any Collateral,
actions with respect to the occurrence of an Event of Default under Creditor's
Documents, actions with respect to the foreclosure upon, sale, release or
depreciation of, or failure to realize upon any of the Collateral), (b)
Creditor's election, in any proceeding instituted under Chapter 11 of Title 11
of the United States Code (11 U.S.C. Section 101 ET SEQ.) (the "Bankruptcy
Code"), of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or
(c) any borrowing or grant of a security interest under Section 363 or 364 of
the Bankruptcy Code by any Obligor, as debtor in possession with respect to the
Creditor Senior Collateral. In that regard, Nations agrees that (A) if any
Obligor desires to use cash collateral under Section 363 of the Bankruptcy Code
and Creditor consents to such use, Nations will also consent to such use without
asserting any objection of any kind (including an objection on the grounds of
failure to provide adequate protection for Nations' junior lien on such Creditor
Senior Collateral), and (B) if such Obligor desires to obtain credit from
Creditor under Section 364 of the Bankruptcy Code to be secured by the Creditor
Senior Collateral, Nations will consent to such credit without asserting any
objection of any kind (including an objection on the grounds of failure to
provide adequate protection for Nations' junior lien on such Creditor Senior
Collateral).
8. MARSHALING. Creditor hereby waives any rights Creditor has or may have
in the future to require Nations to ▇▇▇▇▇▇▇▇ the Nations Senior Collateral, and
agrees that Nations may proceed against the Nations Senior Collateral in any
order that it deems appropriate in the exercise of its absolute discretion.
Nations hereby waives any rights Nations has or may have in
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the future to require Creditor to ▇▇▇▇▇▇▇▇ the Creditor Senior Collateral, and
agrees that Creditor may proceed against the Creditor Senior Collateral (subject
to the terms of this Agreement) in any order that it deems appropriate in the
exercise of its absolute discretion.
9. REPRESENTATIONS CONCERNING OBLIGORS: LIABILITY OF PARTIES. Neither of
the parties hereto, nor any of such party's directors, officers, agents or
employees, shall be responsible to any other party hereto or to any other person
for (i) any Obligor's solvency, financial condition or ability to repay its
indebtedness to any party hereto, (ii) any oral or written statements of any
Obligor, or (iii) the validity, sufficiency or enforceability of such
indebtedness, Creditor's Documents, Nations' Documents or the security interests
and liens granted by each Obligor to any party hereto. Each party hereto has
entered into its financing arrangement with each Obligor based upon such party's
own independent investigation, and makes no warranty or representation to any
other party hereto, nor does such party rely on any warranty or representation
of any other party hereto, with respect to the matters referred to in this
paragraph.
10. MISCELLANEOUS.
(a) THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS
ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ITS CONFLICT OF LAWS PRINCIPLES. THE PARTIES AGREE THAT ALL ACTIONS OR
PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND FEDERAL COURTS OF NEW YORK OR, AT THE SOLE
OPTION OF NATIONS, IN ANY OTHER COURT IN WHICH NATIONS SHALL INITIATE LEGAL OR
EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER
IN CONTROVERSY. EACH OF CREDITOR AND NATIONS WAIVES, TO THE EXTENT PERMITTED
UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM
NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN
ACCORDANCE WITH THIS SECTION 10. CREDITOR AND NATIONS HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS. CREDITOR AND NATIONS REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
(b) Each party consents that any service of process may be made by
service upon Creditor or Nations, as applicable, or by certified or
registered mail directed to Creditor or
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Nations at its address set forth below; however, nothing contained herein shall
prevent service of process in any other manner permitted by applicable law. This
Agreement contains the entire agreement among the parties hereto with respect to
this subject, and may only be modified by a writing signed by each of the
parties hereto.
(c) Neither party's failure to exercise any right hereunder shall be
construed as a waiver of the right to exercise the same or any other right at
any other time and from time to time thereafter, and such rights shall be
cumulative and not exclusive.
(d) The knowledge by either party of any breach or other non-observance by
the other party of the terms of this Agreement shall not constitute a waiver
thereof or of any obligations to be performed by such party hereunder.
(e) Paragraph headings used herein are for convenience only, and shall not
affect the meaning of any provision of this Agreement.
(f) All notices or consents required under the terms and provisions of
this Agreement shall be in writing and sent to the following addresses:
If to Creditor: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, President
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Strook & Strook & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Nations: NationsCredit Commercial Corporation,
through its NationsCredit Commercial Funding
Division
1177 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Notices shall be deemed to have been duly given (i) if delivered personally or
otherwise actually received, (ii) if sent by overnight delivery service, (iii)
if mailed by first class United States mail, postage prepaid, registered or
certified, with return receipt requested, or (iv) if sent by telex with telex
confirmation of receipt (with duplicate notice sent by United States mail as
provided above). Notice mailed as provided in clause (iii) above shall be
effective on the earlier of the date of actual receipt or three (3) business
days after its deposit. Notice given in any other manner described in this
paragraph shall be effective upon receipt by the addressee thereof, PROVIDED,
HOWEVER, that if any notice is tendered to an addressee and delivery thereof is
refused by such addressee, such notice shall be effective upon such tender.
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(g) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and permitted assigns. The
term "Obligor" shall include, without limitation, any successor or assign of
Obligor, including without limitation a receiver, trustee or debtor in
possession. This Agreement shall be a continuing agreement and shall remain in
full force and effect notwithstanding the insolvency, liquidation or dissolution
of any Obligor.
(h) Creditor hereby agrees that any party that refinances Nations' Debt
may rely on and enforce this Agreement as if it were Nations. Creditor further
hereby agrees that it will, at the request of Nations, enter into an agreement,
in the form of this Agreement, MUTATIS MUTANDIS, to subordinate any security
interests or liens it now or hereafter has in or upon the Nations Senior
Collateral, to the same extent as provided herein, to the party refinancing all
or a portion of Nations' Debt; provided that the failure of Creditor to execute
such an agreement shall not affect such party's right to rely on and enforce the
terms of this Agreement. Nations hereby agrees that any party that refinances
Creditor's Debt may rely on and enforce this Agreement as if it were Creditor.
Nations further hereby agrees that it will, at the request of Creditor, enter
into an agreement, in the form of this Agreement, MUTATIS MUTANDIS to
subordinate any security interests or liens it now or hereafter has in or upon
the Creditor Senior Collateral, to the same extent as provided herein, to the
party refinancing all or a portion of Creditor's Debt; provided that the failure
of Nations to execute such an agreement shall not affect such party's right to
rely on and enforce the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date first written above.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CAPITAL CORPORATION
By
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Its
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NATIONSCREDIT COMMERCIAL
CORPORATION, THROUGH ITS
NATIONSCREDIT COMMERCIAL FUNDING
DIVISION
By
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Its
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CONSENT
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The undersigned hereby consents to the terms of the foregoing Intercreditor
Agreement and agrees to be bound by the terms thereof.
PALLETECH INC.
By
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Its
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FIXCOR INDUSTRIES, INC.
By
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Its
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FIX-CORP INTERNATIONAL. INC.
By
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Its
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EXHIBIT A
PALLET EQUIPMENT
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