Amended and Restated Intercreditor Agreement, dated as of October 9, 2012

D.             Borrower and TAB are parties to that certain Loan and Security Agreement dated October 9, 2012, evidencing a loan in the original principal amount of $3,000,000.00 (the “TAB Loan Agreement”) (such TAB Loan Agreement, together with all of the security agreements, guaranties and other documents executed or filed in connection therewith or related thereto are hereinafter collectively referred to as the “TAB Loan Documents”).  The payment of Borrower’s obligations under the TAB Loan Documents are secured by a security interest in and to the property of Borrower described on Schedule III attached hereto (the “TAB Loan Collateral”).

E.              It is a condition to the consummation of the transactions contemplated by the TAB Loan Agreement that the Parties and Borrower execute this Agreement in order to establish, among the Parties, their respective priorities in their respective security interests in, and liens on, their respective Collateral.

 

F.              The Parties have each filed or may hereafter file financing statements under the Uniform Commercial Code, as enacted in the jurisdictions of organization of the various Borrowers, as may be amended from time to time (“UCC”), with respect to the 2008 Loan Collateral, the 2009 Loan Collateral, the Moriah Note Collateral and the TAB Loan Collateral, respectively, in connection with the foregoing.

NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements herein contained and other good and valuable consideration, the Parties and Borrower mutually covenant, warrant and agree as follows:

1.             Definitions.  All the agreements or instruments herein defined shall mean such agreements or instruments as the same may from time to time be supplemented or amended or the terms thereof waived or modified to the extent permitted by, and in accordance with the terms thereof.  The following terms (including both the singular and plurals thereof) shall have the following meanings unless the context indicates otherwise:

1.1   “Accounts Receivable” means all obligations owed at any time by any Loan Party’s account debtors to such Loan Party in respect of services rendered to such account debtors by, or products sold to such account debtors by, such Loan Party, whether billed or unbilled, including surcharges, late fees and other amounts due to such Loan Party from such account debtors that are associated with such services rendered or products sold.

                1.2           “Agent” means Glenhaven in its capacity as agent pursuant to the Amended 2008 Loan Agreement, and its successors and assigns including any replacement or successor agent or any additional agent.

1.3           “Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §§101 et seq.).

1.4           “Claim” or “Claims” means, as applicable, the TAB Claim, the Noteholder Claim, the Moriah Claim and/or the Lender Claim.

1.5           “Collateral” means all property and interests in property now owned or hereafter acquired by any Loan Party in or upon which a security interest or mortgage lien is granted to any Party under the Security Documents.

1.6           “Creditor” or “Creditors” shall mean TAB, Moriah, the Noteholders, the Agent, and/or the Lenders, and their respective successors and assigns.

1.7           “Enforcement Action” means with respect to a Claim, the demand for payment or acceleration of such Claim, the repossession of any Collateral, or the commencement or prosecution of enforcement of any of the rights and remedies under the applicable Security Documents or applicable law with respect to such Claim, including, but not limited to, judicial or UCC foreclosure, provided that Enforcement Action shall not include the filing of a claim in an Insolvency Proceeding.

1.8           “Enforcement Notice” means a written notice delivered by the Enforcing Party to the other Parties stating that an “Event of Default” (as defined in the applicable Security Documents) has occurred and is continuing and that an Enforcement Period has commenced.

1.9           “Enforcement Period” means the period of time following the receipt by any Party of an Enforcement Notice until (a) the Claim of the Enforcing Party is Paid in Full, or (b) the Parties agree in writing to terminate such Enforcement Period.

1.10          “Enforcing Party” means TAB in the case of an Enforcement Action with respect to the TAB Claim, the Agent in the case of an Enforcement Action with respect to the Noteholder Claim, Moriah in the case of an Enforcement Action with respect to the Moriah Claim, or the Lenders in the case of an Enforcement Action with respect to the Lender Claim.

1.11          “Insolvency Proceeding” means any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, dissolution, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, dissolution or other winding up of any Loan Party.

1.12          “Lenders” means the persons who are defined as “Lenders” in Recital B hereof.  For the purposes of this Agreement, the Lenders shall collectively be treated as one Party under this Agreement, and the respective rights and obligations of the Lenders vis-a-vis each other and the Collateral shall be governed by the Lender Agreements.

1.13          “Lender Agreements” means the Amended 2009 Loan Agreement and the Amended 2009 Notes, as the same may be amended from time to time.

1.14          “Lender Claim” means all of the obligations of the Loan Parties to the Lenders as set forth in the Lender Agreements, as the same may be amended from time to time, including any promissory notes or other indebtedness substituted or exchanged therefor.

1.15          “Lender Senior Collateral” is defined in Section Section 2.1(a).

1.16          “Loan Party” means Borrower and each subsidiary of Borrower which is now or may hereafter become a party to any Security Documents.

1.17          “Moriah Agreements” means the Promissory Note, the Loan Payoff Agreement, the Moriah Security Agreement and all other agreements of even date related thereto, as the same may be amended from time to time.

1.18          “Moriah Claim” means all of the obligations of the Loan Parties to Moriah as set forth in the Moriah Agreements, as the same may be amended from time to time, including any promissory notes or other indebtedness substituted or exchanged therefor.

1.19          “Moriah Security Agreement” means the Security Agreement, of even date herewith, between Moriah and InterMetro.

1.20          “Noteholder Agreements” means the Amended 2008 Loan Agreement and the Amended 2008 Notes, as the same may be amended from time to time.

1.21          “Noteholder Claim” means all obligations of the Loan Parties to the Agent and the Noteholders as set forth in the Noteholder Agreements, as the same may be amended from time to time, including any promissory notes or other indebtedness substituted or exchanged therefor.

 

1.22          “Paid in Full” means, in the case of the TAB Claim, the aggregate outstanding, unpaid amount of the TAB Claim has been paid in full in cash and all commitments to make loans or extend other financial accommodations have terminated and have been fully paid or otherwise satisfied and, in the case of the Noteholder Claim, the Moriah Claim or the Lender Claim, the aggregate outstanding unpaid amount of such Claim has been paid in full in cash, all commitments to make loans or extend other financial accommodations have terminated and have been fully paid or otherwise satisfied, and all other Obligations (as defined in the Amended 2008 Loan Agreement or the Amended 2009 Loan Agreement, as the case may be) have been fully paid or otherwise satisfied.  If after receipt of any payment of, or proceeds of Collateral applied to the payment of, any Party’s Claim, any of the Creditors is required to surrender or return such payment or proceeds to any person for any reason, then the Claim intended to be satisfied by such payment or proceeds shall be reinstated and continue as if such payment or proceeds had not been received by such Creditor.

1.23          “Party” or “Parties” means TAB, the Lenders, the Agent (on behalf of the Noteholders), and/or Moriah.

1.24          “Person” or “person” means, as applicable, any individual, sole proprietorship, partnership, corporation, limited liability company, limited liability partnership, partnership, business trust, unincorporated association, joint stock corporation, trust, joint venture or other entity or any government or any agency or instrumentality or political subdivision thereof.

 

1.25          “Post-Petition Interest” means interest at the contract rate under the applicable Security Documents accruing subsequent to the filing of any Insolvency Proceeding as to any Loan Party whether or not such interest is an allowable claim in any such Insolvency Proceeding.

(b) The Lenders shall have a first and prior security interest in the Lender Senior Collateral, whether now owned or hereafter created by any Loan Party.  The Agent (on behalf of the Noteholders) shall have a second and subordinate security interest in the Lender Senior Collateral, whether now owned or hereafter created by any Loan Party.  TAB shall have a third and subordinate security interest in the Lender Senior Collateral, whether now owned or hereafter created by any Loan Party.  Moriah shall have a fourth and subordinate security interest in the Lender Senior Collateral, whether now owned or hereafter created by any Loan Party.

 

(c) When the Lender Claim has been Paid in Full, the Agent (on behalf of the Noteholders) shall have and assume the lien priority of the Lenders provided in this Section 2.1 and the payment and distribution rights of the Lenders provided in Section 2.2 with respect to the Noteholder Claim.

No Party shall contest the validity, perfection, priority or enforceability of any lien or security interest heretofore granted to any other Party or granted in connection herewith or contemplated hereby.  Notwithstanding any failure of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as among the Parties hereto shall be as set forth herein.

Anything herein to the contrary notwithstanding, the subordination of liens and security interests provided for herein shall not constitute a subordination of any Party’s Claims to those of any other Party.

2.2.           Distribution of Proceeds of Collateral.

(a)           When No Enforcement Period is in Effect.  Except as provided in Section 2.2(b) below (with respect to distribution of proceeds of Collateral during an Enforcement Period):

(i)           All realizations upon and proceeds of TAB Senior Collateral shall be paid to TAB for application to the TAB Claim, with any residual proceeds after satisfaction of the TAB Claim being paid, if and to the extent such realization relates to Accounts, first to Moriah, and then to the Lenders, and thereafter to the Agent (for the benefit of the Noteholders).  To the extent that such realization relates to TAB Senior Collateral other than Accounts, any residual proceeds after satisfaction of the TAB Claim shall be paid first to the Lenders, with any residual proceeds after satisfaction of the Lender Claim being thereafter paid to the Agent (for the benefit of the Noteholders).

 

(ii)           All realizations upon and proceeds of Lender Senior Collateral shall be paid to the Lenders for application to the Lender Claim, with any residual proceeds after satisfaction of the Lender Claim being paid first to the Agent (for the benefit of the Noteholders), with any residual proceeds after satisfaction of the Noteholder Claim being thereafter paid to TAB, and after the TAB Claim has been Paid in Full, to Moriah.

(b)           During any Enforcement Period:  During any Enforcement Period, all proceeds of Collateral shall be distributed in accordance with the following procedure:

(i)           All realizations upon and proceeds of TAB Senior Collateral shall be applied to the TAB Claim.  After the TAB Claim is Paid in Full, any remaining proceeds of the TAB Senior Collateral shall be applied, if and to the extent such realization relates to Accounts, first to the amount due to Moriah under the Promissory Note until such amount is Paid in Full, and then to the Lender Claim until the Lender Claim is Paid in Full.  Thereafter, any remaining proceeds of the TAB Senior Collateral consisting of Accounts shall be applied to the Noteholder Claim until Paid in Full.  To the extent that such realization relates to TAB Senior Collateral other than Accounts, any residual proceeds after satisfaction of the TAB Claim shall be paid first to the Lenders until the Lender Claim is Paid in Full, with any residual proceeds after satisfaction of the Lender Claim being thereafter paid to the Agent (for the benefit of the Noteholders).

(ii)           All realizations upon and proceeds of Lender Senior Collateral shall be applied to the Lender Claim.  After the Lender Claim is Paid in Full, any remaining proceeds of the Lender Senior Collateral shall be applied to the Noteholder Claim, until the Noteholder Claim is Paid in Full.  Thereafter, any remaining proceeds of the Lender Senior Collateral shall be applied to the TAB Claim until the TAB Claim is Paid in Full, and then to the amount due to Moriah under the Promissory Note until the Promissory Note is Paid in Full.

(iii)           After all of the Claims have been Paid in Full, the balance of the realizations upon and proceeds of the Collateral, if any, shall be paid to the respective Loan Party or as otherwise required by applicable law.

(c)           Payments Held in Trust.  Should any payment or distribution be received by a Party that is not permitted to receive and retain such payment or distribution pursuant to the terms hereof, such Party shall receive and hold the same in trust, as trustee, for the Party entitled to receive and retain such payment, and shall forthwith deliver the same to such Party in precisely the form received (except for endorsement or assignment where necessary), for application to the Claim of such Party and, until so delivered, the recipient shall hold the same in trust as the property of such Party entitled to the same.  If a Party obligated to make an endorsement or assignment pursuant to the provisions of this Section fails to make any such endorsement or assignment, the permitted recipient of such payment or distribution, or any of its officers or employees, is hereby irrevocably authorized to make the same.

2.3.           Enforcement Actions.  Each Party agrees not to commence or take any Enforcement Action until an Enforcement Notice has been given by such Enforcing Party to the other Parties.  Subject to the foregoing, the Parties agree that during an Enforcement Period:

2.4.           Accountings.  Each Party agrees upon the occurrence of any Enforcement Action, to render accountings to the other Parties, upon reasonable written request of the other Parties, giving effect to the application of realizations upon and proceeds of Collateral as hereinbefore provided.

2.5.           Notices of Defaults.  The Parties agree to give each other copies of any notice of the occurrence of an Event of Default under their respective Security Documents, simultaneously with the sending of such notice to the applicable Loan Party, but the failure to give or forward any such notice shall not affect the validity of such notice, create a cause of action against the Party failing to give such notice, or create any claim or right on behalf of any other Party or any third party.  The sending or receipt of such notice shall not obligate the recipient to cure such Event of Default.

2.6.           Agency for Perfection.  Each Party each hereby appoints each other Party as agent for purposes of perfecting their respective security interests and liens in the Collateral.  To the extent that any Party obtains possession of Collateral in which another Party has a senior priority under the terms hereof, the Party having possession shall notify the other Parties of such fact and shall deliver such Collateral to the Party having the senior priority upon request of such Party.  Each Party shall be a bailee for the other Parties with respect to Collateral in such Party’s possession.  If directed by a Loan Party, the bailee Party shall, after the Claim of such bailee Party has been Paid in Full, deliver the Collateral in its possession to the other Party that has the next senior lien priority pursuant to Section 2.1.

2.7.           UCC Notices.  In the event that any Party shall be required by the UCC or any other applicable law to give notice to the other Parties of intended disposition of Collateral, such notice shall be given in accordance with Section 3.9 hereof, and five (5) days’ notice shall be deemed to be commercially reasonable, except as otherwise set forth herein.

2.8.           Information Sharing.  Upon the occurrence and continuance of an Enforcement Period, in the event that any Party shall, in connection with any Enforcement Action, receive possession or control of any books and records which contain information identifying or pertaining to any of the property of any Loan Party in which any other Party has been granted a lien, it shall notify the other Party that it has received such books and records (but the failure to give or forward any such notice shall not affect the validity of such notice, create a cause of action against the Party failing to give such notice, or create any claim or right on behalf of any other Party or any third party), and shall, as promptly as practicable thereafter, make available to the other Party duplicate copies of such books and records in the same form as the original upon written request therefore.  All reasonable expenses incurred by any Party in performing its obligations under this paragraph shall be borne by the Loan Parties and shall constitute indebtedness under the respective Party’s agreements with the Loan Parties.  The failure of any Party to share information shall not create a cause of action against the Party failing to share information or create any claim on behalf of any Loan Party or any third party.

2.9.           Obligations of the Loan Parties Unconditional.  Nothing contained herein is intended to or shall increase or impair the obligations, liabilities and indebtedness of the Loan Parties to pay the Claims as and when the same shall become due and payable in accordance with the terms of the respective Security Documents or to affect the relative rights of the Loan Parties and creditors of the Loan Parties other than the Creditors.

2.10.           Continuing Obligations.  This Agreement shall be irrevocable and shall continue in effect until each Claim has been Paid in Full.  This is a continuing agreement and each Party may continue, at any time and without notice to the other Parties, to extend credit to or for the benefit of the Loan Parties on the faith hereof.

2.11.           Certain Waivers.

(a)           Each Party acknowledges that the other Parties have not made any warranties or representations with respect to the due execution, legality, validity, completeness or enforceability of their respective Security Documents or the collectibility of their respective Claims.

(b)           Each Party shall be entitled to manage and supervise its financial arrangements with each Loan Party in accordance with its usual practices, modified from time to time as it deems appropriate under the circumstances, without affecting the validity or enforceability of this Agreement.

(c)           Each Party shall have no liability to the other Parties for, and each Party hereby waives any claim which such Party may now or hereafter have against any other Party arising out of, any and all actions which any Party, in good faith, takes or omits to take (including, without limitation, actions with respect to the creation, perfection or continuation of liens or security interests in any existing or future Collateral, actions with respect to the occurrence of a default or event of default, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the other Parties’ Claim from any account debtor, guarantor or any other person) with respect to and in accordance with any of their respective Security Documents or any other agreement related thereto or to the collection of the its Claim or the valuation, use, protection or release of the Collateral, so long as any such actions are taken in a manner consistent with the terms of this Agreement or any election of the application of Section 1111(b)(2) of the Bankruptcy Code.

2.12.           Modifications and Waivers.  Any modification or waiver of any provision of this Agreement, or any consent to any departure by any Party from the terms hereof, shall not be effective in any event unless the same is in writing and signed by TAB, Moriah, the Agent (on behalf of the Noteholders), and the applicable Requisite Lenders (in accordance with and as defined in the Lender Agreements) (which action by such Requisite Lenders shall be binding on all Lenders) and then such modification, waiver or consent shall be effective only in the specific instance and for the specific purpose given.  Any notice to or demand on any Party in any event not specifically required hereunder shall not entitle the Party receiving such notice or demand to any other or further notice or demand in the same, similar or other circumstances unless specifically required hereunder.  Each Loan Party hereby acknowledges and agrees that this Agreement may be amended or otherwise modified without notice to or consent by any Loan Party.

2.13.           Insurance.  The Party having a senior security interest or lien in Collateral shall have, subject to such Party’s rights under its agreements with the Loan Parties, the sole and exclusive right, as against the other Parties, to adjust and settle any insurance policy covering such Collateral in the event of any loss thereunder and all proceeds of any such insurance policy shall be paid to the Parties in accordance with the priorities set forth in Section 2.2 relating to the Collateral which is the subject of such insurance.

2.14           Effect of Bankruptcy.  This Agreement shall be and remain enforceable notwithstanding any Insolvency Proceeding by or against Borrower.

3.1.           Representations, Warranties and Covenants of the Parties.  Each Party represents, warrants and covenants to the other that:

 

(a)            except as set forth herein, it has not subordinated, and agrees that it will not subordinate at any time while this Agreement remains in effect, any right, claim or interest of any kind in or to the Collateral as to which such Party has a senior lien or security interest, and any subordination in violation of this sub-paragraph shall be null and void;

3.2           Representations, Warranties and Covenants of Borrower.  Borrower represents, warrants and covenants to the Creditors that:

(c)           Borrower agrees that (i) it will, together with its successors and assigns, be bound by the provisions hereof as they relate to the relative rights of the Parties as among them; (ii) the terms of this Agreement shall not give Borrower any substantive rights vis-a-vis any of the Creditors; (iii) it does not and will not receive any right, benefit, priority or interest under or because of the existence of this Agreement; (iv) it will execute and deliver such additional documents and take such additional action as may be necessary or desirable in the opinion of any Creditor to effectuate the provisions and purposes of this Agreement; and (v) if any Party shall enforce its rights or remedies in violation of the terms of this Agreement, Borrower shall not use such violation as a defense to any Enforcement Action by any other Party nor assert such violation as a counterclaim or basis for set-off or recoupment against any Creditor, provided that Borrower will continue to have all of its other remedies at law or in equity for damages or loss or other harm it may incur.

 

(d)   Borrower has delivered to each Party true and complete copies of the Security Documents of each other Party.

3.3.           No Benefit to Third Parties.  The terms and provisions of this Agreement shall be for the sole benefit of the Creditors and their respective successors and assigns, and no other Person shall have any right, benefit, priority or interest under or because of this Agreement.

3.4.           Independent Credit Investigations.  No Party nor any of its respective directors, officers, agents or employees shall be responsible to any other person for the solvency, financial condition or ability of any Loan Party to repay a Claim, or for statements of any Loan Party, oral or written, or for the validity, sufficiency or enforceability of any Claim, the Security Documents, or any liens or security interests granted by any Loan Party in connection therewith.  Each of the Creditors has entered into its respective financing agreements with the Loan Parties based upon its own independent investigation and makes no warranty or representation to the other Parties with respect to matters identified or referred to in this paragraph.  If any Party, in its sole discretion, undertakes, at any time or from time to time, to provide any such information to another Party, such information shall be given with no representation or warranty of any kind from such Person and such Person shall be under no obligation (a) to provide any such information to any other Person at that time or to any Person on any subsequent occasion or (b) to undertake any investigation not a part of its regular business routine.

3.5           Amendments to Financing Arrangements or to this Agreement.  Each Party shall endeavor to notify the other Parties of any material amendment or modification of their respective Security Documents, but the failure to do so shall not create a cause of action against the Party failing to give such notice or create any claim or right on behalf of the other Parties.  Each Party shall, upon request of any other Party, provide copies of all such modifications or amendments and copies of all other documentation relevant to the Collateral.

3.6.           Marshaling of Assets.  Moriah, the Agent and the Lenders hereby waive any and all rights to have the TAB Senior Collateral, or any part thereof, marshaled upon any foreclosure of any of TAB’s liens thereon or with respect to any other Enforcement Action by TAB.  TAB, Moriah and the Agent (on behalf of the Noteholders) hereby waive any and all rights to have the Lender Senior Collateral, or any part thereof, marshaled upon any foreclosure of the Lenders’ liens thereon or with respect to any other Enforcement Action by the Lenders.  If any Claim is now or hereafter secured by collateral other than the Collateral described hereunder, the Party holding such collateral shall have no obligation to marshal such collateral before enforcing its rights in the Collateral hereunder, and the other Parties shall have no rights hereunder to share or participate in any proceeds of such other collateral.  Each Party shall have the right, subject to Section 2.3, to take Enforcement Action against Collateral in such order, or in whole or in part, and subject to such conditions as such Enforcing Party determines in its sole discretion.

3.7.           Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of each of the parties hereto, but does not otherwise create, and shall not be construed as creating, any rights enforceable by any Loan Party or any person not a party to this Agreement other than a Noteholder.

3.8.           Agreement Absolute.  This Agreement shall be and remain absolute and unconditional under any and all circumstances, and no act or omission on the part of any party to this Agreement shall affect or impair the agreement of any other party hereunder.  Each of the Parties hereby authorizes the other Parties to (a) grant renewals, increases or extensions of the time for payment of the Claim of such Party; (b) receive notes or other evidences of the obligations of the Loan Parties to such other Party or renewals, increases or extensions thereof; and (c) take or omit to take any action for the enforcement of, or waive any rights with respect to, any obligation of the Loan Parties to such other Party without invalidating or impairing any provision hereof.  The Parties hereby acknowledge and agree that this Agreement does not increase or expand the obligations of Borrower under the respective Security Documents to which the Parties are party.  Further, the Parties acknowledge that if Borrower, in good faith, shall make a payment of Claims in a manner that is inconsistent with the terms hereof, it shall have no liability to any Party therefor as long as Borrower cooperates with the Parties to rectify such mistake.

3.9.              Notices.  All notices, requests and demands to or upon the respective parties shall be given in writing, which shall include fax transmission and email with confirmed electronic receipt during normal business hours, and shall be deemed to have been duly given or made upon receipt by the receiving party.  All notices, requests and demands are to be given or made to the respective parties at the following addresses (or to such other addresses as either party may designate by notice in accordance with the provisions of this paragraph):

 

3.10.          Relationship of Parties.  This Agreement is entered into solely for the purposes set forth herein, and except as expressly provided herein, no Party assumes any other duties or responsibilities to the other regarding the financial condition of Borrower or any other Party, or regarding any collateral, or regarding any other circumstance bearing upon the risk of nonpayment of the obligations of Borrower under any of the agreements hereinabove referred to.  Each Party shall be responsible for managing its banking investments and/or business relationships with Borrower, and no Party shall be deemed to be the agent of the other for any purpose (except for the limited purpose set forth in Section 2.6) nor shall any party hereto be deemed to be acting in concert with, or at the direction of, any other party.

3.11.           Governing Law.  This Agreement shall be construed in accordance with, and shall be governed by, the laws of the State of Delaware (without giving effect to choice of law or conflict of law rules).

3.12.           Counterparts.  This Agreement may be executed in counterparts and by facsimile or other electronic transmission, each of which when so executed, shall be deemed an original, but all of which together shall constitute but one and the same instrument.

3.13            Headings.  The headings, captions and footers of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.

3.14            Severability.  If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement or the validity or enforceability of this Agreement in any other jurisdiction.

3.15            Entire Agreement; Benefit.  This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof.  There are no restrictions, promises, warranties, or undertakings, other than those set forth or referred to herein.  This Agreement supersedes all prior agreements and understandings, whether written or oral, between the parties hereto with respect to the subject matter hereof.  This Agreement and the terms and provisions hereof are for the sole benefit of only the Creditors and their respective successors and permitted assigns.

3.16            Waiver.  Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, or any course of dealing between the parties, shall not operate as a waiver thereof or an amendment hereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or exercise of any other right or power.

3.17   Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

3.18   Termination of Tri-Party Intercreditor Agreement.  Upon entering into this Agreement, Moriah, the Agent (on behalf of the Lenders under that certain Amended and Restated Short Term Loan and Security Agreement dated October 5, 2010, as amended), the lenders (or the Requisite Lenders, under that certain Amended and Restated Loan and Security Agreement dated October 5, 2010) and Borrower hereby terminate that certain Tri-Party Intercreditor Agreement dated as of April 30, 2009, as amended by Amendment No. 1 – Tri-Party Intercreditor Agreement dated as of October 6, 2010.