Exhibit 10.9
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (as amended, restated or modified from time to
time, the "Agreement") is dated as of December 31, 2003, and made by and among
Bobby Lutz ("Senior Lender"), Broyd, Inc., a Texas corporation ("Junior
Lender"), and Availent Financial, Inc., a Delaware corporation ("Borrower").
RECITALS
--------
A. Borrower has executed and delivered to Senior Lender promissory notes
dated as of February 12, 2003, currently in the aggregate original
principal sum of $400,000.00 (the "Senior Note").
B. Borrower has executed and delivered to Junior Lender a promissory note
of even date herewith in the original principal sum of $3,250,000.00
(the "Junior Note").
C. Senior Lender, Junior Lender and Borrower now desire to enter into
this Agreement for the purposes set forth herein.
AGREEMENTS
----------
In consideration of the foregoing, the covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
acknowledged, Senior Lender, Junior Lender and Borrower hereby agree as follows:
Section 1. Subordination.
--------------
(a) The capitalized terms used in this Agreement shall have the following
meanings:
(i) "Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit, arrangement, security interest, encumbrance,
lien (statutory or other and including without limitation, any
attachment, levy, or judgment lien), preference, priority, or
other security agreement or other preferential arrangement
whatsoever, including, without limitation, the filing of any
financing statement naming the owner of the asset to which such
Lien relates as debtor.
(ii) "Collateral" means all tangible and intangible personal property
acquired by Senior Lender from Junior Lender pursuant to that
certain Agreement for Sale and Purchase of Assets dated as of
December 31, 2003, among Senior Lender, Junior Lender, Caroline
D. Brown and Thomas P. Boyd, (as the same may have been or may
hereafter be amended, supplemented, restated or replaced, the
"Purchase Agreement"), and all accessions, appurtenances and
additions to and substitutions for any of the foregoing and all
products and proceeds of any of the foregoing, together with all
renewals and replacements of any of the foregoing, all accounts,
receivables, account receivables, instruments, notes, chattel
paper, documents (including all documents of title), books,
records, contract rights and general intangibles arising in
connection with any of the foregoing (including all insurance and
claims for insurance affected or held for the benefit of Senior
Lender or Junior Lender in respect of the foregoing) and together
with all general intangibles now owned by Senior Lender or
existing or hereafter acquired, created or arising, related to
any of the foregoing property.
75
(b) Unless and until the Junior Lender has been repaid the sum of
$3,250,000.00 in principal under the Junior Note, Junior Lender
shall have a first and prior Lien in the Collateral and all
proceeds thereof. To the extent that the Senior Lender and Junior
Lender hold Liens covering the same portion of the Collateral,
any Lien in the Collateral by the Senior Lender shall be, and is,
junior and subordinate to all Liens in the Collateral held by the
Junior Lender.
Section 2. Obligations of Senior Lender Upon Exercise of the Junior
Lender's Option to Unwind the Transactions Giving Rise to the Execution of the
Junior Note. Upon the exercise by the Junior Lender of the option to unwind the
transactions giving rise to the execution and delivery of the Junior Note, as
set forth in the Purchase Agreement, Senior Lender covenants and agrees that he
will cooperate with the parties to the Purchase Agreement and take such action
as is reasonably required of it, at the Borrower's expense, to facilitate the
unwinding of the transaction as provided for in the Purchase Agreement. Such
action shall include, but shall not be limited to (a) permitting the transfers
of such assets to the Junior Lender as may be contemplated by the provisions of
the Purchase Agreement, and (b) as to any asset to be transferred to the Junior
Lender, releasing or obtaining the release of any and all Liens on such assets
in favor of Senior Lender or any other creditor having a secured interest in
such assets under any of the loan documents relating to Senior Lender's Liens.
Section 3. Conflicts. In the event of any conflict between (i) the
provisions of this Agreement and (ii) the provisions of either of the Senior
Note or Junior Note, the provisions of this Agreement shall govern.
Section 4. Amendments; Waivers. No amendment, modification, or waiver of
any of the provisions of this Agreement by Senior Lender or Junior Lender shall
be deemed to be made unless the same shall be in writing signed on behalf of the
party making such waiver and any such waiver shall be a waiver only with respect
to the specific instance involved and shall in no way impair the rights of the
party making such waiver or, unless otherwise agreed, the obligations of the
other party to such party in any other respect or at any other time.
Section 5. Governing Law. This Agreement shall be governed by the laws of
the state of Texas.
Section 6. Notices. All notices to Senior Lender, Junior Lender or Borrower
under this Agreement shall be sent to Senior Lender, Junior Lender or Borrower
at the address given beneath its signature to this Agreement, or, as to each
party, at such other address as may be designated by such party in a written
notice to the other party. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, or sent by recognized commercial
overnight courier service and shall be deemed to have been given when delivered
in person, or one (1) business day after delivery to such courier service with
charges prepaid and properly addressed.
76
Section 7. Counterparts. This Agreement maybe executed in one or more
counterparts, each of which shall be an original and all of which shall together
constitute one and the same document.
Section 8. Successors and Assigns. The terms of this Agreement shall apply
to, be binding upon, and inure to the benefit of the parties hereto, their
successors, assigns and legal representatives, and all other persons claiming
by, through, and under them.
[Signature Page Follows]
77
EXECUTED as of the date first above written.
SENIOR LENDER:
/s/ Bobby Lutz
-----------------------------
Bobby Lutz
Address for Notice:
JUNIOR LENDER:
BROYD, INC.
By: /s/ Thomas P. Boyd
-----------------------------
Name: Thomas P. Boyd
Title: President
Address for Notice:
141905 Southwest Freeway, Suite 201
Sugar Land, Texas 77478
Attention: Thomas P. Boyd
BORROWER:
AVAILENT FINANCIAL, INC.
By: /s/ Patrick A. McGeeney
-----------------------------
Name: Patrick A. McGeeney
Title: CEO
Address for Notice:
2720 Stemmons Freeway
South Tower, Suite 600
Dallas, TX 75007
78