EXHIBIT 99.15
INTERCREDITOR AND SUBORDINATION AGREEMENT
INTERCREDITOR AND SUBORDINATION AGREEMENT dated as of March 29, 2006, made
by TRIDENT GROWTH FUND, L.P. (the "JUNIOR LENDER"), AFG ENTERPRISES USA, INC. a
Nevada corporation ("AFG") and FP TECHNOLOGY HOLDINGS, INC., a Delaware
corporation ("FPT" and together with AFG and any Guarantor (as hereinafter
defined), each an "OBLIGOR" and collectively the "OBLIGORS"), in favor of the
holders of the Senior Indebtedness (as hereinafter defined), including, but not
limited to, each of the Senior Lenders (as hereinafter defined) and THE BANK OF
NEW YORK, a New York corporation, as collateral agent for the Senior Lenders
defined below (in such capacity, the "SENIOR AGENT").
W I T N E S S E T H:
WHEREAS, AFG and The Bank of New York, as trustee for the Holders (in such
capacity and together with its successors and assigns in such capacity, the
"TRUSTEE"), are parties to an Indenture dated as of the date hereof (as amended,
restated, supplemented or otherwise modified from time to time, the
"INDENTURE"), providing, subject to the terms and conditions thereof, for the
issuance by the Company of the Notes (as defined in the Indenture) (as such
Notes may be amended, restated, replaced or otherwise modified from time to time
in accordance with the terms thereof, collectively, the "NOTES");
WHEREAS, each of the "Holders" as defined in the Indenture (each a "SENIOR
LENDER" and collectively, the "SENIOR LENDERS") has entered into a Securities
Purchase Agreement (as amended, restated or otherwise modified from time to
time, the "SECURITIES PURCHASE AGREEMENT") with the Company providing, subject
to the terms and conditions thereof, for the purchase of the Notes and related
"Warrants" (as defined therein) from the Company;
WHEREAS, pursuant to the Security Documents (as defined in the Indenture)
(the "SENIOR SECURITY DOCUMENTS"), AFG has granted to the Senior Agent, for the
benefit of the Senior Agent and the Lenders, a lien on, and security interest
in, substantially all of its assets and any proceeds thereof;
WHEREAS, AFG has, immediately prior to the execution hereof, acquired FPT
as its wholly owned subsidiary through a merger with a subsidiary of AFG;
WHEREAS, FPT, upon the effectiveness of the merger, became required to
execute and deliver to the Senior Agent a Guaranty (as defined therein) (as
amended, restated or otherwise modified from time to time, the "GUARANTY"), with
respect to the obligations of the AFG under the Transaction Documents (as
defined below) and a Security Agreement dated as of even date herewith, in favor
of the Senior Agent for the benefit of the Senior Lenders (as amended, restated
or otherwise modified from time to time, the "SENIOR SECURITY AGREEMENT");
WHEREAS, pursuant to a Securities Purchase Agreement dated as of September
12, 2005 among FPT and the Junior Lender (as amended by that certain Master
Amendment dated as of the date hereof (the "MASTER AMENDMENT") among FPT, the
Junior Lender and AFG (as so amended, (the "JUNIOR SPA"), AFG is currently
indebted to the Junior Lender in the principal amount of $2,500,000, such
indebtedness being evidenced by (i) the 12% Senior Secured Convertible
Debenture, dated September 13, 2005 and as amended by the master Amendment made
by AFG to the Junior Lender in the principal amount of $2,000,000 (the "FIRST
TRIDENT DEBENTURE"), and (ii) the 12% Senior Secured Convertible Debenture,
dated November 15, 2005 and as amended by the Master Amendment, made by the AFG
to the Junior Lender in the principal amount of $500,000 (the "SECOND TRIDENT
DEBENTURE" and collectively with the First Trident Debenture, the "JUNIOR
DEBENTURES"), and
WHEREAS, pursuant to the Securities Purchase Agreement as amended by the
Master Amendment, AFG entered into (i) a Warrant Agreement, dated as of
September 13, 2005 and as amended by the Master Amendment, and (ii) a Warrant
Agreement dated November 15, 2003 and as amended by the Master Amendment
(collectively, the "WARRANT AGREEMENTS"), to the Junior Lender for the purchase
of shares of the AFG's capital stock;
WHEREAS, pursuant to the Security Agreement dated as of September 13, 2005
by and among FPT and the Junior Lender and as amended by the Master Amendment,
FPT has granted to the Junior Lender, a lien on, and security interest in,
substantially all of its assets and the proceeds thereof (the "JUNIOR SECURITY
AGREEMENT"); and
WHEREAS, the Senior Agent, the Obligor and the Junior Lender wish to set
forth the terms and conditions pursuant to which the indebtedness of the
Obligors existing from time to time in favor of the Junior Lender pursuant to
the Junior Indebtedness (as herein defined) shall be subordinate to the prior
payment in full of all of the Obligations as set forth herein from time to time
existing in favor of the holders of the Senior Debt.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Agents and the Lenders to make and maintain Loans and provide other
financial accommodations to the Obligors, the Senior Agent and the Junior Lender
hereby agree as follows:
Section 1. Definitions and Rules of Construction.
(a) Definitions. The following terms, as used in this Agreement, shall
have the following meanings:
"ACCOUNTS" means all the Obligors' now owned or hereafter acquired
right, title, and interest with respect to "accounts" (as that term is defined
in the UCC), and any and all supporting obligations in respect thereof.
"AGREEMENT" means this Intercreditor and Subordination Agreement
together with any and all amendments, extensions, modifications, riders,
addenda, exhibits, and schedules hereto.
"BANKRUPTCY CASE" means any proceeding commenced by or against any
Obligor, under any provision of the Bankruptcy Code or under any other federal
or state bankruptcy or insolvency law, including assignments for the benefit of
creditors, formal or informal moratoria, compositions, extensions generally with
its creditors, or proceedings seeking reorganization, arrangement, or other
similar relief, and all converted or succeeding cases in respect thereof.
"BANKRUPTCY CODE" means the United States Bankruptcy Code (11 U.S.C.
ss. 101, et seq.), as amended, and any -- --- successor statute.
"BOOKS" means the Obligors' now owned or hereafter acquired books
and records (including all of their Records indicating, summarizing, or
evidencing their assets (including the Collateral) or liabilities, all of their
Records relating to their business operations or financial condition, and all of
their goods or General Intangibles related to such information).
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which national banks are authorized or required to close in New York
City.
"COLLATERAL" means all of each Obligor's presently existing and
hereafter acquired personal property, including, without limitation, such
Obligor's Accounts, Books, Equipment, General Intangibles, Inventory, Investment
Property and Negotiable Collateral; all of each Obligor's Real Property and
leases for Real Property; all money or other assets of each Obligor that now or
hereafter come into the possession, custody, or control of a Secured Creditor;
and the proceeds and products, whether tangible or intangible, of any of the
foregoing, including proceeds of insurance covering any or all of the foregoing,
and any and all Accounts, Books, Equipment, General Intangibles, Goods,
Inventory, Intellectual Property, Supporting Obligations, Instruments,
Investment Property, Negotiable Collateral, Commercial Tort Claims, Deposit
Accounts, Documents, Real Property, leases for Real Property, money, deposit
accounts, or other tangible or intangible property resulting from the sale,
exchange, collection, or other disposition of any of the foregoing, or any
portion thereof or interest therein.
"COPYRIGHTS" means all domestic and foreign copyrights, whether
registered or not, including, without limitation, all copyright rights
throughout the universe (whether now or hereafter arising) in any and all media
(whether now or hereafter developed), in and to all original works of authorship
fixed in any tangible medium of expression, acquired or used by any Grantor, all
applications, registrations and recordings thereof (including, without
limitation, applications, registrations and recordings in the United States
Copyright Office or in any similar office or agency of the United States or any
other country or any political subdivision thereof), and all reissues,
divisions, continuations, continuations in part and extensions or renewals
thereof.
"DOCUMENTS" means, collectively, the Senior Documents and the Junior
Documents.
"EQUIPMENT" means all of the Obligors' now owned or hereafter
acquired right, title, and interest with respect to equipment, machinery,
machine tools, motors, furniture, furnishings, fixtures, vehicles (including
motor vehicles), vessels, tools, parts, goods (other than consumer goods, farm
products, or Inventory), wherever located, including all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing.
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"GENERAL INTANGIBLES" means all of the Obligors' now owned or
hereafter acquired right, title, and interest with respect to general
intangibles as defined in the UCC (including payment intangibles, contract
rights, rights to payment, judgments, rights arising under common law, statutes,
or regulations, choses or things in action, goodwill, patents, designs,
inventions, trade names, trade secrets, d/b/a's, Internet domain names, logos,
trademarks, servicemarks, copyrights, blueprints, drawings, purchase orders,
customer lists, monies due or recoverable from pension funds, route lists,
rights to payment and other rights under any royalty or licensing agreements,
infringement claims, computer programs, information contained on computer disks
or tapes, software, literature, reports, catalogs, money, deposit accounts,
insurance premium rebates, tax refunds, and tax refund claims), and any and all
supporting obligations in respect thereof, and any other personal property other
than goods, Accounts, Investment Property, and Negotiable Collateral.
"GUARANTOR" mans any person that is or becomes a guarantor of the
Senior Indebtedness or the Junior Indebtedness after the date hereof.
"INTELLECTUAL PROPERTY" means the Copyrights, Trademarks and Patents
and all licenses related thereto.
"INVENTORY" means all of the Obligors' now owned or hereafter
acquired right, title, and interest with respect to inventory, including goods
held for sale or lease or to be furnished under a contract of service, goods
that are leased by any Obligor as lessor, goods that are furnished by any
Obligor under a contract of service, and raw materials, work in process, or
materials used or consumed in any Obligor business..
"INVESTMENT PROPERTY" means all the Obligors' now owned or hereafter
acquired right, title, and interest with respect to "investment property" as
that term is defined in the UCC, and any and all supporting obligations in
respect thereof.
"JUNIOR DOCUMENTS" means, collectively, the Junior SPA, the Junior
Security Agreement and any other document, instrument, mortgage or agreement now
existing or in the future entered into evidencing, documenting, securing, or
otherwise relating to the Junior Indebtedness or the Collateral, together with
any amendments, replacements, substitutions, or restatements thereof.
"JUNIOR INDEBTEDNESS" means any and all presently existing or
hereafter arising indebtedness, claims, debts, liabilities, obligations, fees
and expenses of the Obligor owing to the Junior Lender under the Junior
Documents, whether direct or indirect, whether contingent or of any other
nature, character, or description (including all interest and other amounts
accruing after commencement of any Bankruptcy Case, and any interest and other
amounts that, but for the provisions of the Bankruptcy Code, would have accrued
and become due or otherwise would have been allowed), and any refinancings,
renewals, refundings, or extensions of such amounts.
"JUNIOR DEBENTURES" has the meaning set forth in the Recitals to
this Agreement.
"JUNIOR LENDER" has the meaning set forth in the preamble to this
Agreement.
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"JUNIOR SECURITY AGREEMENT" has the meaning set forth in the
Recitals to this Agreement.
"NEGOTIABLE COLLATERAL" means all of the Obligors' now owned and
hereafter acquired right, title, and interest with respect to letters of credit,
letter of credit rights, instruments, promissory notes, drafts, documents, and
chattel paper (including electronic chattel paper and tangible chattel paper),
and any and all supporting obligations in respect thereof.
"PAID IN FULL" means the indefeasible final payment in full in cash
of all such Senior Indebtedness in accordance with the Senior Documents with
respect to such Senior Indebtedness and such payment shall not be subject to
defeasance, disgorgement, repayment or return for any reason whatsoever. For the
purposes of this Agreement, the Senior Indebtedness shall not be deemed to have
been paid in full until 90 days following such date on which the Senior Agent
and the Senior Lenders thereof shall have received indefeasible final payment in
full in cash of all such Senior Indebtedness.
"PATENTS" means all domestic and foreign letters patent, design
patents, utility patents, industrial designs, inventions, trade secrets, ideas,
concepts, methods, techniques, processes, proprietary information, technology,
know-how, formulae, rights of publicity and other general intangibles of like
nature, now existing or hereafter acquired (including, without limitation, all
domestic and foreign letters patent, design patents, utility patents, industrial
designs, inventions, trade secrets, ideas, concepts, methods, techniques,
processes, proprietary information, technology, know-how and formulae), all
applications, registrations and recordings thereof (including, without
limitation, applications, registrations and recordings in the United States
Patent and Trademark Office, or in any similar office or agency of the United
States or any other country or any political subdivision thereof), and all
reissues, divisions, continuations, continuations in part and extensions or
renewals thereof.
"PERSON" means natural persons, corporations, limited liability
companies, limited partnerships, general partnerships, limited liability
partnerships, joint ventures, trusts, land trusts, business trusts, or other
organizations, irrespective of whether they are legal entities, and governments
and agencies and political subdivisions thereof.
"REAL PROPERTY" means any estates or interests in real property now
owned or hereafter acquired by any Obligor and the improvements thereto.
"RECORD" means information that is inscribed on a tangible medium or
which is stored in an electronic or other medium and is retrievable in
perceivable form.
"SECURED CREDITOR" means any of the Senior Agent, the Senior Lenders
or the Junior Lender, or any successor or assignee of any of them, or any future
holder of Senior Indebtedness or Junior Indebtedness, respectively.
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"SECURED CREDITOR REMEDIES" means any action by a Secured Creditor
in furtherance of the sale, foreclosure, realization upon, or the repossession
or liquidation of any of the Collateral, including, without limitation: (i) the
exercise of any remedies or rights of a "Secured Creditor" under Article 9 of
the UCC, such as, without limitation, the notification of account debtors; (ii)
the exercise of any remedies or rights as a mortgagee or beneficiary (or by the
trustee on behalf of the beneficiary), including, without limitation, the
appointment of a receiver, or the commencement of any foreclosure proceedings or
the exercise of any power of sale, including, without limitation, the placing of
any advertisement for the sale of any Collateral; (iii) the exercise of any
remedies available to a judgment creditor; (iv) the exercise of any rights of
forfeiture, recession or repossession of any assets, or (v) any other remedy
available in respect of the Collateral available to such Secured Creditor under
any Document to which it is a party or under applicable law, provided that
Secured Creditor Remedies shall not include any action taken by a Secured
Creditor solely to (A) correct any mistake or ambiguity in any Documents or (B)
remedy or cure any defect in or lapse of perfection of the lien of a Secured
Creditor in the Collateral.
"SECURED CREDITORS' INDEBTEDNESS" means, collectively, the Senior
Indebtedness and the Junior Indebtedness.
"SENIOR AGENT" has the meaning set forth in the Recitals to this
Agreement and shall include any successor agent under the Senior Loan Agreement
or any replacement or refinancing thereof.
"SENIOR DOCUMENTS" means, collectively, the Senior Loan Agreement,
the Senior Security Documents, any Transaction Documents (as defined in the
Senior Loan Agreement) and any other document instrument or agreement now
existing or in the future entered into evidencing, documenting, securing or
otherwise relating to the Senior Indebtedness or the Collateral, together with,
to the extent not prohibited by Section 14(a) of this Agreement, any amendments,
replacements, substitutions, or restatements thereof.
"SENIOR INDEBTEDNESS" means any and all presently existing or
hereafter arising indebtedness, reimbursement obligations, claims, debts,
liabilities, obligations (including, without limitation, any prepayment premium,
expenses, indemnities, commissions and fees of the Obligors owing to the Senior
Agent and the Senior Lenders under the Senior Loan Documents, whether direct or
indirect, whether contingent or of any other nature, character, or description
(including all interest and other amounts accruing after commencement of any
Bankruptcy Case, and all interest and other amounts that, but for the provisions
of the Bankruptcy Code, would have accrued and become due or otherwise would
have been allowed), and any refinancings, renewals, refundings, or, to the
extent permitted in Section 14(a) hereof, extensions of such amounts.
"SENIOR LENDERS" has the meaning set forth in the preamble to this
Agreement and shall include all subsequent holders of the Senior Indebtedness.
"SENIOR LOAN AGREEMENTS" means the Indenture, the Securities
Purchase Agreement and the Notes.
"SENIOR SECURITY DOCUMENTS" has the meaning set forth in the
Recitals to this Agreement.
"SPECIFIED COLLATERAL" has the meaning set forth in Section 12 of
this Agreement.
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"TAKING" has the meaning set forth in Section 9(a) of this
Agreement.
"TRADEMARKS" means all domestic and foreign trademarks, service
marks, collective marks, certification marks, trade names, business names,
d/b/a's, Internet domain names, trade styles, designs, logos and other source or
business identifiers and all general intangibles of like nature, now or
hereafter owned, adopted, acquired or used by any Grantor (including, without
limitation, all domestic and foreign trademarks, service marks, collective
marks, certification marks, trade names, business names, d/b/a's, Internet
domain names, trade styles, designs, logos and other source or business
identifiers), all applications, registrations and recordings thereof (including,
without limitation, applications, registrations and recordings in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any state thereof or any other country or any political
subdivision thereof), and all reissues, extensions or renewals thereof, together
with all goodwill of the business symbolized by such marks and all customer
lists, formulae and other Records of any Grantor relating to the distribution of
products and services in connection with which any of such marks are used.
"UCC" means the Uniform Commercial Code as adopted in the State of
New York, or in such other jurisdiction as governs the perfection of the liens
and security interests in the Collateral for the purposes of the provisions
hereof relating to such perfection or effect of perfection.
(b) UCC Definitions. All other capitalized terms used in this Agreement
that are defined in the UCC shall have the meanings given to them in the UCC
unless otherwise expressly defined herein.
(c) Other Definitional Provisions. When used in this Agreement: (i) the
words "herein," "hereof," and "hereunder" and words of similar import shall
refer to this Agreement as a whole and not to any provision of this Agreement;
(ii) the words "include," "includes," and "including" are not limiting; the word
"or" has, except where otherwise required by the context, the inclusive meaning
represented by the phrase "and/or"; (iii) unless otherwise specified, the words
"Section," "Schedule" and "Exhibit" refer to Sections of, and Schedules and
Exhibits to, this Agreement unless otherwise specified; and (iv) the singular
number includes the plural, and vice versa, whenever the context so requires.
Section 2. Subordination of Junior Indebtedness.
(a) Blockage of Payments to the Junior Lender. a) No payment in cash
or other property or otherwise (excluding securities that are subordinated to
the Senior Indebtedness to the same extent as, or more deeply than, the Junior
Indebtedness is subordinated to the Senior Indebtedness pursuant to this
Agreement) on account of any Junior Indebtedness shall be made by or on behalf
of the Obligors, and the Junior Lender will not ask, demand, ▇▇▇ for, take, or
receive any such payment, directly or indirectly, from or on behalf of the
Obligors, if at the time of such payment or immediately after giving effect
thereto there shall have occurred and be continuing a Default or an Event of
Default (each as defined in any Senior Documents).
(ii) If at any time following a blockage of payments to the Junior
Lender pursuant to paragraph (a) of this Section 2.1, the Junior Lender is no
longer prohibited from receiving any payments with respect to the Junior
Indebtedness by such Section, the Junior Lender shall be entitled to receive all
payments with respect to the Junior Indebtedness that have been blocked together
with any default interest to the extent provided for by the Junior Documents.
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(b) Prohibition of Payments of Junior Indebtedness on Acceleration
or in Bankruptcy Case. b) Upon (x) any acceleration of the principal amount due
on any Junior Indebtedness or (y) any payment or distribution of assets of any
Obligor, of any kind or character, whether in cash, property or securities,
following commencement of a Bankruptcy Case, all amounts due or to become due
upon all Senior Indebtedness shall first be Paid in Full, before any payment is
made on account of any of the Junior Indebtedness; and following commencement of
a Bankruptcy Case, any payment or distribution of assets of any Obligor of any
kind or character, whether in cash, property or securities, to which the Junior
Lender would be entitled, except for the provisions hereof, shall be paid by any
Obligor or any other Person making such payment or distribution, or by the
Junior Lender if received by it, directly to the Senior Lenders, to the extent
necessary to result in all Senior Indebtedness being Paid in Full, before any
payment or distribution is made to the Junior Lender.
(ii) In any Bankruptcy Case by or against any Obligor,
(i) the Senior Lenders may, and are hereby irrevocably
authorized and empowered (in their own name or in the name of the Junior
Lender), but shall have no obligation, to, (A) demand, ▇▇▇ for, collect and
receive every payment or distribution referred to in this Section 2.2 and give
acquittance therefor and (B) file claims and proofs of claim in respect of the
Junior Indebtedness and take such other action (including, without limitation,
voting the Junior Indebtedness or enforcing any security interest or other lien
securing payment of the Junior Indebtedness) as the Senior Lenders may
reasonably deem necessary or advisable for the exercise or enforcement of any of
the rights or interests of the Senior Lenders hereunder, provided that the
Senior Lenders may only file claims and proofs of claims in respect of the
Junior Indebtedness if there shall remain not more than 30 days before such
action is barred, prohibited or otherwise cannot be taken; and
(ii) the Junior Lender will duly and promptly take such action
as the Senior Lenders may reasonably request (A) to collect the Junior
Indebtedness for the account of the Senior Lenders and in its reasonable
business judgment, to file appropriate claims or proofs of claim with respect
thereto, (B) to execute and deliver to the Senior Lenders such powers of
attorney, assignments or other instruments as the Senior Lenders may request in
order to enable it to enforce any and all claims with respect to, and any
security interests and other liens securing payment of, the Junior Indebtedness,
and (C) to collect and receive for the account of the Senior Lenders any and all
payments or distributions which may be payable or deliverable upon or with
respect to the Junior Indebtedness.
(c) Payments Held in Trust/Turnover. In the event that,
notwithstanding the foregoing, any payment or distribution of assets of any
Obligor, whether in cash, property or securities, prohibited by this Agreement
shall be received by the Junior Lender before all Senior Indebtedness is Paid in
Full such payment or distribution shall be held in trust for the benefit of and
shall be paid over to or delivered to the Senior Lenders, until all such Senior
Indebtedness shall have been Paid in Full.
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(d) Subrogation, Etc. No payment or distribution to the Senior
Lenders pursuant to the provisions of this Agreement shall entitle the Junior
Lender to exercise any rights of subrogation, contribution, reimbursement or
indemnity in respect thereof until all Senior Indebtedness shall have been Paid
in Full. After the Senior Indebtedness has been Paid in Full, the Junior Lender
shall be subrogated to the rights of the Senior Lenders to receive payments or
distributions of assets of the Obligors applicable to the Senior Indebtedness
until all amounts owing in respect of the Junior Indebtedness shall be paid in
full, and for the purpose of such subrogation, no such payments or distributions
to the Senior Lenders by or on behalf of the Obligors or by or on behalf of the
Junior Lender by virtue of this Agreement which otherwise would have been made
to the Junior Lender shall, as among the Obligors, their creditors other than
the Senior Lenders and the Junior Lender, be deemed to be payment by the
Obligors to or on account of the Senior Indebtedness, it being understood that
the above provisions relating to subordination are solely for the purpose of
defining the relative rights of the Senior Lenders on the one hand, and the
Junior Lender, on the other hand.
Section 3. Permitted Liens and Relative Priorities. As among the Secured
Creditors, and notwithstanding the terms (including the description of
Collateral), dating, execution, or delivery of any document, instrument, or
agreement; the time, order, method, or manner of granting, or perfection of any
security interest or lien; the time of filing or recording of any financing
statements, assignments, deeds of trust, mortgages, or any other documents,
instruments, or agreements under the UCC or any other applicable law; and any
provision of the UCC or any other applicable law to the contrary, the Secured
Creditors agree:
(a) The Senior Agent, on behalf of the Senior Lenders, shall have a first
priority security interest in and lien upon the Collateral which shall be senior
in all respects and prior to any lien upon the Collateral held by any Junior
Lender; and
(b) The Junior Lender, shall have a second priority security interest in
and lien upon the Collateral, which shall be junior and subordinate in all
respects regardless of how acquired, whether by grant, statute, operation of
law, subrogation or otherwise, to any lien upon the Collateral held by the
Senior Agent, on behalf of the Senior Lenders.
For purposes of the foregoing allocation of priorities, any claim of a
right to a setoff shall be treated in all respects as a security interest and no
claimed right of setoff shall be asserted to defeat or diminish the rights or
priorities provided for herein.
If either the Junior Lender shall acquire and hold a lien on any assets of
the Obligors which assets are not also subject to the lien of the Senior Lender,
then notwithstanding any term of the Senior Loan Documents or the Junior Loan
Documents to the contrary, the Junior Lender shall be deemed to hold such lien
for the benefit of the Senior Lender to secure the obligations of the Obligors
to the Senior Lender, subject in all cases to the lien priority and other
provisions of this Agreement.
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Section 4. No Alteration of Priority. The lien and security interest
priorities provided in Section 3 shall not be altered or otherwise affected by
any amendment, modification, supplement, extension, renewal, restatement or (to
the extent permitted in Section 14(a) hereof) refinancing of any of the Senior
Indebtedness or any Junior Indebtedness nor by any action or inaction which any
Secured Creditor may take or fail to take in respect of the Collateral. The
Secured Creditors consent to the Obligors' granting to each other Secured
Creditor the liens and security interests reflected in Section 3.
Section 5. Perfection. Each of the Secured Creditors shall be solely
responsible for, and nothing herein shall prohibit any Secured Creditor from,
perfecting and maintaining the perfection of its lien or security interest in
any of the Collateral in which such party has been granted a lien or security
interest. The provisions of this Agreement are intended solely to govern the
respective priorities as among the Secured Creditors. The Junior Lender agrees
that it will not directly or indirectly take any action to contest or challenge
the validity, legality, perfection, priority, availability, or enforceability of
the liens of any Senior Lenders upon the Collateral or seek to have the same
avoided, disallowed, set aside, or otherwise invalidated in any judicial
proceeding or otherwise.
Section 6. Exercise of Remedies; Management of Collateral.
Notwithstanding anything to the contrary contained in any of the Documents:
(a) Until all Senior Indebtedness has been Paid in Full: (i) the
Senior Lenders shall have the exclusive right to manage, perform, and enforce
the terms of the Senior Documents with respect to the Collateral and to exercise
and enforce all privileges and rights thereunder in their sole discretion,
including, without limitation, the exclusive right to enforce or settle
insurance claims with respect to Collateral, take or retake control or
possession of Collateral and to hold, prepare for sale, process, sell, lease,
dispose of, or liquidate Collateral; (ii) the Junior Lender shall not accelerate
the principal amount due on any Junior Indebtedness or exercise any Secured
Creditor Remedies with respect to Collateral or commence, or join with any other
creditor other than the Senior Lenders in commencing, any Bankruptcy Case; and
(iii) any and all proceeds of Collateral which shall come into the possession,
control, or custody of the Junior Lender (x) from the exercise or enforcement of
remedies by or on behalf of the Junior Lender or (y) otherwise (except with
respect to payments of Junior Indebtedness not prohibited under Section 2(a))
will be deemed to have been received for the account of the Senior Lenders and
shall be immediately paid over to the Senior Lenders.
(b) In connection with the provisions of clause 6(a)(i) above, the
Junior Lender waives any and all rights to affect the method or challenge the
appropriateness of any action by the Senior Lenders with respect to the
Collateral, and waives any claims or defenses they may have against the Senior
Lenders, including any such claims or defenses based on any actions or omissions
of any such person in connection with the perfection, maintenance, enforcement,
foreclosure, sale, liquidation or release of any lien or security interest
therein, or any modification or waiver of any Senior Documents.
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(c) The rights and priorities set forth in this Agreement shall
remain binding irrespective of the terms of any plan of reorganization in a
Bankruptcy Case or other provisions of the Bankruptcy Code or any similar
federal or state statute.
Section 7. Sale of Collateral.
(a) Until the Senior Indebtedness has been Paid in Full: (i) only
the Senior Lenders shall have the right to restrict or permit, or approve or
disapprove, the sale, transfer or other disposition of the Collateral; and (ii)
the Junior Lender will, immediately upon the request of the Senior Lenders,
release or otherwise terminate its liens and security interests upon the
Collateral, to the extent such Collateral is sold or otherwise disposed of in a
commercially reasonable manner by any Obligor with the consent of the Senior
Lenders in accordance with the Senior Documents, and the Junior Lender will
immediately deliver such release documents as the Senior Lenders may require in
connection therewith; provided, however, that if any such sale or disposition
results in a surplus after the Senior Indebtedness has been Paid in Full, such
surplus shall be paid to the Junior Lender, for application in accordance with
the terms of the Junior Documents.
(b) If the Junior Lender shall attempt any Secured Creditor Remedies
or attempt any other action prohibited or restricted under this Agreement, any
Obligor or the Senior Lenders may interpose as a defense or plea the making of
this Agreement and the Senior Lenders may intervene and interpose such defense
in its name or in the name of any Obligor and any Obligor or the Senior Lenders
may by virtue of this Agreement restrain the enforcement thereof in the name of
any Obligor or the Senior Lenders. Notwithstanding anything to the contrary, any
payment or distribution of cash, assets or securities of any Obligor received by
the Junior Lender prior to all Senior Indebtedness being Paid in Full, shall be
held by the Junior Lender in trust for and paid over to the Senior Lenders for
application to the Senior Indebtedness until such Senior Indebtedness is Paid in
Full.
(c) This Section 7 shall not be construed in any way to limit or
impair the right of (i) any Secured Creditor to bid for and purchase Collateral
at any private or judicial foreclosure upon such Collateral initiated by any
other Secured Creditor, (ii) the Junior Lender to join (but not control) any
foreclosure or other judicial lien enforcement proceeding with respect to such
Collateral initiated by the Senior Lenders thereon, so long as it does not delay
or interfere with the exercise by the Senior Lenders of their rights and (iii)
subject to the terms of this Agreement, the right of the Junior Lender on any
Collateral to receive payments from the proceeds of the collection, sale or
other disposition of such Collateral.
Section 8. Sections 9-611 and ▇-▇▇▇ ▇▇▇▇▇▇ and Waiver of
Marshalling. Each Secured Creditor hereby acknowledges that this Agreement shall
constitute notice of the other Secured Creditors' respective interests in the
Collateral as provided by Sections 9-611, 9-613 of the UCC and each of the
Secured Creditors waives any right to compel the other Secured Creditors to
marshal any of the Collateral or to seek payment from any particular assets of
any Obligor or from any third party.
Section 9. Insurance or Condemnation. In the event of:
(a) a taking or threatened taking by condemnation or other eminent
domain of all or any portion of any Real Property (collectively, a "TAKING") or
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(b) the occurrence of a fire or other casualty resulting in damage
to all or any portion of any Collateral (collectively, a "CASUALTY"):
(i) the Junior Lender hereby waives any right to participate
or join in any adjustment, compromise, or settlement of any claims resulting
from a Taking or a Casualty with respect to any Collateral;
(ii) all proceeds received or to be received on account of a
Taking and/or Casualty shall be applied in the manner or manners provided for in
the Senior Documents until the Senior Indebtedness shall have been Paid in Full;
and
(iii) each Junior Lender agrees to execute and deliver any
documents, instruments, agreements or further assurances required to effectuate
any of the foregoing.
Section 10. Bankruptcy Issues.
(a) Except as provided in this Section 10, this Agreement shall
continue in full force and effect after the commencement of a Bankruptcy Case
(all references herein to Obligors being deemed to apply to Obligors as
debtor-in-possession and to a trustee for Obligors' estate in a Bankruptcy
Case), and shall apply with full force and effect with respect to all Collateral
acquired by such Obligors, and to all Secured Creditors' Indebtedness incurred
by Obligors, subsequent to such commencement.
(b) If any Obligor shall become subject to a Bankruptcy Case, and if
the Senior Agent and the Senior Lenders shall desire to permit the use of cash
collateral or to provide post-petition financing to such Obligor, the Junior
Lender agrees as follows: (i) adequate notice to the Junior Lender shall be
deemed to have been provided for such use of cash collateral or post-petition
financing if the Junior Lender receive notice thereof at least five (5) Business
Days prior to any hearing on a request to approve such use of cash collateral or
post-petition financing; and (ii) no objection will be raised by the Junior
Lender to any such use of cash collateral or such post-petition financing by the
Senior Agent and the Senior Lenders, on the grounds of a failure to provide
adequate protection for the Junior Lender's junior liens and security interests
in the Collateral, provided that the Junior Lender is granted the same liens and
security interests on the post-petition Collateral that may be granted to or for
the benefit of the Senior Agent and the Senior Lenders, junior only to the liens
or security interests of the Senior Agent and the Senior Lenders therein. No
objection will be raised by the Junior Secured Creditors to the Senior Agent's
motion for relief from the automatic stay in any proceeding under the Bankruptcy
Code to foreclose on and sell the Collateral.
(c) Without limiting the generality of the foregoing, until the
Senior Indebtedness has been Paid in Full, the Junior Lender agrees that the
Senior Lender may consent to the sale or disposition of any or all of the
Collateral in any bankruptcy, assignment for the benefit of creditors or similar
proceedings against any Obligor (whether such sale or disposition is to be made
pursuant to Section 363 of the Bankruptcy Code, pursuant to a plan of
reorganization, or otherwise), and if such sale or disposition is commercially
reasonable, the Junior Lender, in its capacity as a secured creditor, shall be
deemed to have consented to any such sale or disposition and all of the terms
applicable thereto and shall, if requested to do so by the Senior Lenders in
connection with any such sale or disposition and with the release of the Senior
Lenders' Liens on the Collateral, promptly execute and deliver to the Senior
Lender a release of such Junior Lenders' Liens with respect to the Collateral to
be sold or disposed.
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Section 11. Notice of Default and Certain Events. Each Secured
Creditor shall send written notice to each other Secured Creditor upon the
occurrence of any of the following as applicable:
(a) the declaration of any default under such Secured Creditor's
Documents, or the acceleration of any of such Secured Creditor's Indebtedness;
or
(b) the commencement of any sale or liquidation of, or realization
upon, any of the Collateral.
Each such notice shall be sent to each other Secured Creditor
contemporaneously with the sending of such notice to Obligors if and when sent
under the applicable Documents. The failure of any Secured Creditor to give such
notice shall not affect the relative lien or security interest priorities or the
other privileges of such Secured Creditor as provided in this Agreement or give
rise to any liability.
Section 12. Bailment. With respect to any Collateral in which a
security interest may be perfected under the UCC or other relevant law only by
possession or with respect to which the rights or interests granted to the
Junior Lender may be precluded by or inconsistent with the rights or interests
granted to the Senior Lender ("SPECIFIED COLLATERAL"), the Senior Lenders will
act as pledgeholder for the Junior Lender until the payment in full in cash of
the Senior Indebtedness, whereupon possession of or the other rights with
respect to any such Specified Collateral remaining shall be immediately
transferred to the Junior Lender; and immediately upon such transfer of
possession or the other rights the Junior Lender shall become the pledgeholder
of the Specified Collateral. The Junior Lender acknowledges and agrees that: (a)
the Senior Lenders do not make any representation or warranty whatsoever as to
the nature, extent, description, validity or priority of any Specified
Collateral or the security interests in or liens upon any Specified Collateral;
(b) while any Specified Collateral is held by the Senior Lenders, the Senior
Lenders shall not have any liability to, and shall be held harmless by, the
Junior Lender, for any losses, damages, claim, or liability of any kind to the
extent arising out of the holding of such Specified Collateral, other than
losses, damages, claims, or liabilities arising out of the Senior Lender's gross
negligence or willful misconduct; (c) the Senior Lender need not act as a
pledgeholder for the Junior Lender with respect to any Collateral in which a
security interest may be perfected by means other than possession; (d) the
Junior Lender shall immediately deliver to the Senior Lenders any Specified
Collateral that is now in or in the future comes into their possession; and (e)
the priority of the Secured Creditors' security interests in and liens upon the
Specified Collateral shall be governed by the terms of this Agreement.
Section 13. Authority of Agents/Trustees.
(a) The Senior Agent represents and warrants that the execution,
delivery and performance by it of this Agreement has been duly authorized by the
Senior Lenders and that this Agreement constitutes the legal, valid and binding
obligation of the Senior Agent and the Senior Lenders, enforceable against each
of them in accordance with its terms.
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(b) The Junior Lender represents and warrants that the execution,
delivery and performance by it of this Agreement has been duly authorized by the
Junior Lender and that this Agreement constitutes the legal, valid and binding
obligation of the Junior Lender, enforceable against each of them in accordance
with its terms.
(c) The Junior Lender agrees that any assignment or transfer of an
interest in any of the Junior Indebtedness shall be made expressly subject to
the terms and conditions of this Agreement and any assignment or transfer of an
interest in contravention of this provision shall be null and void.
Section 14. Modification of Documents; Additional Covenants.
(a) The Junior Lender agrees that the Senior Lenders shall have
absolute power and discretion, without notice to the Junior Lender, to deal in
any manner with the Senior Indebtedness, including, but not by way of
limitation, the power and discretion to do any of the following: (i) any demand
for payment of any Senior Indebtedness may be rescinded in whole or in part, and
any Senior Indebtedness may be continued, and the Senior Indebtedness or the
liability of Obligors upon or for any part thereof, or any Collateral or
guaranty therefor, or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, modified, accelerated,
compromised, waived, surrendered, or released; and (ii) the Senior Documents may
be amended, modified, supplemented, refinanced, renewed, refunded, extended or
terminated, in whole or in part, as the Senior Lenders may deem advisable from
time to time; and (iii) any Collateral may be sold, exchanged, waived,
surrendered, or released. The Junior Lender will remain bound under this
Agreement, and the subordination provided for herein shall not be impaired,
abridged, released, or otherwise affected notwithstanding any such renewal,
extension, modification, acceleration, compromise, amendment, supplement,
termination, sale, exchange, waiver, surrender, or release. The Senior
Indebtedness shall conclusively be deemed to have been created, contracted, or
incurred in reliance upon this Agreement, and all dealings between the Senior
Lenders on the one hand, and the Obligors, on the other hand, shall be deemed to
have been consummated in reliance upon this Agreement.
(i) Without the prior written consent of the Senior Lenders,
the Junior Lender agrees not to amend, modify or supplement in whole or in part,
any terms or provisions of any Junior Document.
(ii) So long as any of the Senior Indebtedness shall remain
outstanding, the Junior Lender will not, without the prior written consent of
the Senior Lenders:
(i) (A) except as otherwise expressly permitted in this
Agreement, cancel or otherwise discharge any Junior Indebtedness (except upon
payment in full thereof to the Junior Lender or the Senior Lenders as
contemplated hereby), or (B) subordinate any Junior Indebtedness to any
indebtedness of any Obligor other than the Senior Indebtedness;
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(ii) sell, assign, pledge, encumber or otherwise dispose of
any Junior Indebtedness unless such sale, assignment, pledge, encumbrance or
disposition is made expressly subject to this Agreement; or
(iii) commence, or join with any Person (whether or not such
Person is a creditor of the Obligors) other than the Senior Lenders in
commencing, any Bankruptcy Case.
Section 15. The Junior Lender's Waivers. Each Junior Lender waives:
(a) any and all notice of the creation, modification, renewal, extension, or
accrual of any of the Senior Indebtedness and notice of or proof of reliance by
Senior Lenders upon this Agreement; (b) agrees not to assert against the Senior
Lenders, any rights which a guarantor or surety could exercise, but nothing in
this Agreement shall constitute any Junior Lender as a guarantor or surety; and
(c) prior to the time the Senior Indebtedness is Paid in Full, any right of
subrogation, contribution, reimbursement, or indemnity which it may have against
any Obligor arising directly or indirectly out of this Agreement.
Section 16. Binding Effect; Other. This Agreement shall be a
continuing agreement, shall be binding upon and shall inure to the benefit of
the parties hereto from time to time and their respective successors and
assigns, shall be irrevocable, and shall remain in full force and effect until
the Senior Indebtedness shall have been Paid in Full, and the Senior Documents
shall have been irrevocably terminated, but shall continue to be effective, or
be reinstated, as the case may be, if any payment, or any part thereof, of any
amount paid by or on behalf of any Obligor with regard to any Senior
Indebtedness is rescinded or must otherwise be restored or returned upon or as a
result of any Bankruptcy Case, or for any other reason, all as though such
payments had not been made. Any waiver or amendment hereunder must be evidenced
by a signed writing of the party to be bound thereby, and shall only be
effective in the specific instance. This Agreement and the rights and
obligations of the parties under this Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
The parties agree that any actions arising out of or in connection with this
Agreement shall be tried and litigated in the state and federal courts located
in the County of New York, in the State of New York. The headings in this
Agreement are for convenience of reference only, and shall not alter or
otherwise affect the meaning hereof.
Section 17. Parties Intended to be Benefited. All of the
understandings, covenants, and agreements contained herein are solely for the
benefit of the Senior Agent, the Senior Lenders, the Junior Lender, their
respective successors and assigns, and future holders of the Senior Indebtedness
and the Junior Indebtedness respectively, and there are no other parties,
including any Obligor or any of their creditors, successors, or assigns, which
are intended to be benefited, in any way, by this Agreement.
Section 18. No Limitation Intended. Nothing contained in this
Agreement is intended to or shall affect or limit, in any way, the rights that
the Senior Agent, the Senior Lenders, the Junior Lender have with respect to any
third parties. The Senior Agent, the Senior Lenders, the Junior Lender hereby
specifically reserve all of their respective rights against the Obligors and all
other third parties.
15
Section 19. Notice. Whenever it is provided herein that any notice,
demand, request, consent, approval, declaration, or other communication shall or
may be given to or served upon any of the parties hereto, or whenever any of the
parties desires to give or serve upon the other communication with respect to
this Agreement, each such notice, demand, request, consent, approval,
declaration, or other communication shall be in writing and shall be delivered
either in person or by registered, or certified United States mail, postage
prepaid, by facsimile, or by recognized overnight courier service, addressed as
follows:
(a) If to the Senior Agent, at:
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ______________
Fax No. ______________
with a copy (for informational purposes only) to each of:
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax No. ▇▇▇.▇▇▇.▇▇▇▇
(b) If to the Junior Lender, at:
TRIDENT GROWTH FUND, L.P.
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ St. ▇▇▇▇▇▇
Fax No. __________
with a copy to:
THE LAW OFFICES OF ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
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(c) If to the Obligors, at:
AFG ENTERPRISES USA, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. ______________
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as may be substituted by notice given as herein
provided. Giving of any notice required hereunder may be waived in writing by
the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given when received.
Section 20. Severability. Whenever 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. Complete Agreement. This Agreement constitutes the
complete agreement and understanding of each of the Secured Creditors, and
supersedes all prior or contemporaneous oral and written negotiations,
agreements and understandings, express or implied, with respect to the subject
matter hereof.
Section 22. No Joint Venture. Each of the Secured Creditors
acknowledges and confirms that this Agreement shall not create a joint venture,
agency or fiduciary relationship.
Section 23. Counterparts. This Agreement may be executed in any
number of counterparts, and by the parties each in separate counterparts, each
of which shall be an original, but all of which shall together constitute one
and the same Agreement.
Section 24. Waiver of Jury Trial. THE SENIOR AGENT, THE SENIOR
LENDERS, THE JUNIOR LENDER HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE SENIOR AGENT, THE SENIOR LENDERS AND THE JUNIOR LENDER WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED BY THEM IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. THE SENIOR
AGENT, THE SENIOR LENDERS AND THE JUNIOR LENDER HEREBY AGREE AND CONSENT THAT
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT JURY, AND THAT ANY OF THEM MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT TO THE WAIVER OF
RIGHT TO TRIAL BY JURY.
17
Section 25. Specific Performance. Each of the parties agrees and
acknowledges that in the event of any breach of this Agreement, the
non-breaching party would be irrevocably harmed and would not be made whole by
monetary damages. It is accordingly agreed that the parties hereto shall and do
hereby waive the defense in any action for specific performance that a remedy at
law would be adequate and that the parties hereto, in addition to any other
remedy to which they made be entitled at law or in equity, shall be entitled to
compel specific performance of this Agreement in any action instituted in the
Supreme Court of the State of New York or the United States District Court of
the Southern District of New York, or, in the event such courts shall not have
jurisdiction of such action, in any court of the United States or any state
thereof having subject matter jurisdiction of such actions.
Section 26. Legend; Further Assurances.
(i) The Junior Lender and each Obligor will cause each Junior
Loan Document and any other instrument or agreement hereafter securing,
evidencing or guaranteeing any Junior Indebtedness to be indorsed with
substantially the following legend:
"The indebtedness evidenced by this instrument is subordinated
to the prior payment in full of the Senior Indebtedness (as
defined in the Intercreditor and Subordination Agreement
hereinafter referred to) pursuant to, and to the extent
provided in, the Intercreditor and Subordination Agreement,
dated as of March 29, 2006, among The Bank of New York, in its
capacity as trustee and collateral agent pursuant to the
Indenture dated March 29, 2006 (the "Senior Loan Agreement"),
the lenders who are from time to time parties thereto and AFG
Enterprises USA, Inc."
(ii) The Junior Lender and the Obligors will (i) ▇▇▇▇ their
books or accounts or take such other action as shall be effective to give
reasonable notice of the effect of this Agreement and (ii) in the case of any
Junior Indebtedness which is not evidenced by any instrument, upon Senior
Lenders' request, cause such Junior Indebtedness to be evidenced by an
appropriate instrument or instruments indorsed with the above legend. The Junior
Lender and Obligors will, at its expense and at any time and from time to time,
promptly execute and deliver all further instruments and other documents, and
take all further action, that may be necessary or, in the opinion of the Senior
Lenders, desirable, or that the Senior Lenders may request, in order to protect
any right or interest granted or purported to be granted hereby or to enable the
Senior Lenders to exercise and enforce their rights and remedies hereunder.
18
Section 27. Obligations Unconditional. All rights of the Senior
Agent and the Senior Lenders hereunder shall remain in full force and effect
irrespective of (a) any lack of validity or enforceability of any Transaction
Agreements (as defined in the Indenture), any agreement with respect to any of
the Obligations (as defined in the Indenture) or any other agreement or
instrument relating to any of the foregoing, (b) any change in the time, manner
or place of payment of, or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to any departure from any
Transaction Agreements or any other agreement or instrument, (c) any exchange,
release or non-perfection of any lien on other collateral, or any release or
amendment or waiver of or consent under or departure from any guarantee,
securing or guaranteeing all or any of the Obligations, (d) the commencement of
any Bankruptcy Case in respect of any Obligor, or (e) any other circumstance
that might otherwise constitute a defense available to, or a discharge of, any
Grantor in respect of the Obligations or this Agreement.
[SIGNATURE PAGE FOLLOWS]
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized, as of the date first above written.
TRIDENT GROWTH FUND, L.P.
By: /s/
Name:
Title:
20
FP TECHNOLOGY HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
AFG ENTERPRISES USA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
21
ACCEPTED AND AGREED:
THE BANK OF NEW YORK,
as Senior Agent
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
22
Schedule I
Junior Loan Documents
1. Trident Debenture
[List Subordinated Debt Documents]
23