AMENDED AND RESTATED
INTERCREDITOR AGREEMENT
INTERCREDITOR
AGREEMENT, dated as of December 31, 2008, between David R.
Vey, an individual (“Vey”), Oak Harbor Investment
Properties, L.L.C., a Louisiana limited liability company
(“Oak Harbor”), Vey Associates Incorporated, a
Louisiana corporation (“Associates”), and Sedona
Corporation (“Sedona”).
WHEREAS ,
certain of the parties entered into an Intercreditor Agreement as
of October 23, 2006; and
WHEREAS ,
the current parties desire to amend and restate the Intercreditor
Agreement as reflected herein; and
WHEREAS ,
Oak Harbor has extended a loan to Sedona Corporation
(“Sedona”), as evidenced by a certain promissory note
dated August 17, 2006 from Sedona to Oak Harbor in the
principal sum of ONE MILLION FORTY THOUSAND FOUR HUNDRED TWO and 22
/100 Dollars ($1,040.402.22), (the “Oak Harbor Note”),
which such note is secured by a first priority lien and pledge of
Receivables and certain other assets of Sedona pursuant to the
terms and provisions of an Amended and Restated Security Agreement
dated as of October 23, 2006, between Sedona and Oak Harbor
(the “Oak Harbor Security Agreement”); and
WHEREAS,
Vey has also extended loans to Sedona evidenced by a restated
consolidated convertible promissory note, dated December 31,
2008, in the aggregate principal sum of Four Million One Hundred
Thousand Dollars ($4,100,000) (the “Consolidated
Note”); which such note is secured by a subordinate lien and
pledge of the Receivables and certain other assets of Sedona
pursuant to the terms of a Security Agreement, dated as of
October 23, 2006 between Sedona and Vey (the “Vey
Security Agreement”); and
WHEREAS,
Associates has also extended loans to Sedona as evidenced by a
convertible promissory note, dated December 30, 2008, in the
aggregate principal sum of up to TWO MILLION TWO HUNDRED FIFTY
THOUSAND and 00/100 Dollars ($2,250,000) (the “New
Note”), which such note is secured by a subordinate lien and
pledge of the Receivables and certain other assets of Sedona
pursuant to the terms of a Security Agreement, dated as of
December 30, 2008 between Sedona and Associates (the
“Associates Security Agreement”);
NOW
THEREFORE , in consideration of the foregoing and the mutual
agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
Section 1.
Certain Defined Terms. As used in this Agreement, the
following capitalized terms shall have the meanings respectively
assigned to them below.
“
Agreement” shall mean this Intercreditor Agreement, as the
same may be amended, supplemented, modified, amended or restated
from time to time in the manner provided herein.
“
Notes ” shall collectively mean the Oak Harbor Note, the
Consolidated Note and the New Note.
“
Security Agreements ” shall collectively mean the Oak Harbor Security
Agreement, the Vey Security Agreement and the Associates Security
Agreement.
Section 2.
Subordination of the New Note and the Consolidated Note to
Oak Harbor Note. Vey and Associates hereby postpone and
subordinate, to the extent and in the manner provided in this
Agreement, any and all obligations of Sedona pursuant to the New
Note and the Consolidated Note to the obligations arising under the
Oak Harbor Note and any renewals, extensions, increases or
modifications to such note. Until the Oak Harbor Note has been
fully and finally paid, neither Sedona, Associates nor Vey shall
take or permit any action prejudicial to or inconsistent with Oak
Harbor’s priority position over Associates and Vey that is
created by this Agreement. Associates and Vey agree that the Oak
Harbor Note may, in whole or in part, be renewed, extended,
increased, modified, accelerated, compromised, settled or released
and that any collateral security or liens for the Oak Harbor Note
may, from time to time in whole or in part, be exchanged, sold,
released or surrendered, as Oak Harbor may deem advisable, all
without impairing the subordination contained in this
Agreement.
Section 3.
Subordination of the Consolidated Note to the New
Note. Vey hereby postpones and subordinates, to the extent
and in the manner provided in this Agreement, any and all
obligations of Sedona pursuant to the Consolidated Note to the
obligations arising under the New Note and any renewals,
extensions, increases or modifications to such note. Until the New
Note has been fully and finally paid, neither Sedona nor Vey shall
take or permit any action prejudicial to or inconsistent with
Associates’ priority position over Vey that is created by
this Agreement. Vey agrees that the New Note may, in whole or in
part, be renewed, extended, increased, modified, accelerated,
compromised, settled or released and that any collateral security
or liens for the New Note may, from time to time in whole or in
part, be exchanged, sold, released or surrendered, as Associates
may deem advisable, all without impairing the subordination
contained in this Agreement.
Section 4.
P riority of Payment Upon the Acceleration of the New Note or
the Consolidated Note .
(a) In the
event that either the New Note or the Consolidated Note are
declared due and payable before their stated maturity, then and in
such event no payment or distribution of any kind or character
shall be made in respect of the New Note or the Consolidated Note,
and Oak Harbor shall be entitled to receive payment in full in cash
of all amounts due or to become due or in respect of the Oak Harbor
Note (whether or not an event of default has occurred thereunder or
such Oak Harbor Note has been declared due and payable prior to the
date on which it would otherwise have become due and payable),
before either Vey or Associates is entitled to receive any payment
or distribution of any kind or character (including any payment
which may be p
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