INTERCREDITOR AND SUBORDINATION AGREEMENT

 

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                                                                  EXECUTION COPY

 

                                                                    EXHIBIT 10.3

 

                    INTERCREDITOR AND SUBORDINATION AGREEMENT

 

            This Intercreditor and Subordination Agreement is entered into as of

April 1, 2005, among ABLECO FINANCE LLC in its capacity as the Senior Lender (as

hereinafter defined) and the Term Loan B Lender (as hereinafter defined) and

Tudor BVI Global Portfolio Ltd., Raptor Global Portfolio Ltd., and Tudor

Arbitrage Partners L.P. (collectively, the "Tudor Noteholders") and EFG

Eurofinancial Investment Company (the "EFG Noteholder", and together with the

Tudor Noteholders, each a "Junior Noteholder" and collectively, the "Junior

Noteholders"), in light of the following:

 

                                    RECITALS

 

            A.     enherent Corp., a Delaware corporation (the "Parent"), and

each Subsidiary of the Parent listed as a borrower on the signature pages

thereto (together with the Parent, each a "Borrower" and collectively, the

"Borrowers") are entering into that certain Amended and Restated Financing

Agreement dated as of the date hereof (as amended, restated, supplemented or

otherwise modified from time to time, including any replacement agreement

therefor, the "Senior Loan Agreement").

 

            B.     Concurrently herewith, as security for the prompt payment and

performance of the Senior Indebtedness (as hereinafter defined), each Borrower

is entering into certain security agreements, pledge agreements, collateral

assignments and other security documents (collectively, the "Senior Security

Documents") pursuant to which each Borrower is granting a lien on and a security

interest in all of its assets (the "Collateral") to the Senior Lender.

 

            C.     Concurrently herewith, the Borrowers are making those certain

Subordinated Notes, dated the date hereof (the "Junior Notes"), in favor of the

EFG Noteholder and the Tudor Noteholders, which Junior Notes are being made in

respect of a Preferred Stock Agreement, dated October 28, 2004 by and between

the Parent and the Junior Noteholders pursuant to which each Junior Noteholder

has agreed to tender its Series A Preferred Stock of the Parent in exchange for

common stock of the Parent and a Junior Note.

 

            D.     Concurrently herewith, (i) as security for the prompt payment

and performance of the Junior Indebtedness (as hereinafter defined), each

Borrower is entering into certain security agreements and pledge agreements (the

"Junior Security Documents") pursuant to which each Borrower is granting a lien

on and a security interest in all of its assets to the Junior Noteholders.

 

            E.     The Senior Lender, the Term Loan B Lender, and the Junior

Noteholders wish to agree as to the priority of the repayment of the Senior

Indebtedness (as hereinafter defined) and the Junior Indebtedness (as

hereinafter defined), and the rights of each with respect thereto, and as to

their respective liens upon and security interests in the Collateral (as

hereinafter defined) and as to certain other rights, priorities, and interests

as between and among the Senior Lender and the Junior Creditors (as hereinafter

defined).

 

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                                    AGREEMENT

 

            In consideration of the foregoing, the mutual covenants contained

herein, and for other good and valuable consideration, the receipt of which the

Senior Lender and the Junior Noteholders hereby acknowledge, the Senior Lender

and the Junior Noteholders hereby agree as follows:

 

            1.     Definitions and Rules of Construction.

 

            (a)    Definitions. The following terms, as used in this Agreement,

shall have the following meanings:

 

                  "Accounts" and "Investment Property" shall have the meanings

assigned to them under Article 9 of the UCC.

 

                  "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. Section 101, et seq.), as amended, and any successor statute.

 

                  "Books" means any Obligor's now owned or hereafter acquired

books and records (including all of its Records indicating, summarizing, or

evidencing its assets (including the Collateral) or liabilities, all of its

Records relating to its business operations or financial condition, and all of

its goods or General Intangibles related to such information).

 

                   "Borrower" and "Borrowers" have the meanings set forth in the

Preamble to this Agreement.

 

                  "Business Day" means any day that is not a Saturday, Sunday or

other day on which national banks are authorized or required to close.

 

                  "Collateral" means all of each Obligor's presently existing

and hereafter acquired personal property, including, without limitation, such

Obligor's Accounts, Books, deposit accounts, Equipment, General Intangibles,

Inventory, Investment Property and Negotiable Collateral; all proceeds and

insurance proceeds of the foregoing; 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,

Inventory, Investment Property, Negotiable

 

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Collateral, 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.

 

                   "Collateral Agency and Intercreditor Agreement" means the

Collateral Agency and Intercreditor Agreement, dated as of the date hereof, by

and among Tudor BVI Portfolio Ltd. as agent for the Junior Noteholders, the

Junior Noteholders and Borrowers.

 

                  "Controlling Junior Creditors" means at any time the Junior

Creditors holding at least 51% of the outstanding principal balance of the

Junior Indebtedness, excluding, however, any Junior Noteholder that owns an

equity interest in any Borrower of any form or type.

 

                  "Documents" means, collectively, the Senior Documents and the

Junior Documents.

 

                  "EFG Note" means that certain subordinated secured promissory

note made by Parent in favor of EFG Eurofinancial Investment Company dated April

1, 2005 in the original principal amount of $187,500.

 

                  "Equipment" means all of Obligors' now owned or hereafter

acquired right, title, and interest with respect to equipment (including gaming

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.

 

                  "General Intangibles" means all of each Obligor's now owned or

hereafter acquired right, title, and interest with respect to general

intangibles (including payment intangibles, contract rights, rights to payment,

rights arising under common law, statutes, or regulations, choses or things in

action, goodwill, patents, trade names, 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.

 

                  "Inventory" means all of each Obligor's 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.

 

                  "Junior Creditors" mean each Junior Noteholder and the Term

Loan B Lender.

 

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                  "Junior Documents" means the EFG Note, the Tudor Notes, the

Junior Security Documents, the Collateral Agency and Intercreditor Agreement and

the Term Loan B Documents.

 

                  "Junior Indebtedness" means any and all presently existing or

hereafter arising indebtedness, claims, debts, liabilities, obligations,

interest, fees and expenses of the Obligors owing to (i) each Junior Noteholder

pursuant to the Junior Documents and (ii) the Term Loan B Lender in respect of

the Term Loan B Indebtedness, in each case, 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 Noteholder" has the meaning set forth in the preamble

to this Agreement.

 

                  "Junior Notes" means, collectively, the EFG Note and the Tudor

Notes.

 

                   "Junior Security Documents" has the meaning set forth in the

Recitals to this Agreement.

 

                  "Loan Documents" has the meaning set forth for such term in

the Senior Loan Agreement.

 

                  "Negotiable Collateral" means all of each Obligor's 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.

 

                  "Obligors" means collectively each Borrower.

 

                  "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.

 

                  "Pro Rata Share" means, with respect to any Junior Creditor's

share of Collateral proceeds after the Senior Indebtedness has been Paid in

Full, the percentage obtained by dividing (i) the amount due and owing to such

Junior Creditor with respect to its portion of the Junior Indebtedness then

outstanding, by (ii) the aggregate amount due and owing to all of the Junior

Creditors with respect to all outstanding Junior Indebtedness.

 

                  "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.

 

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                  "Secured Creditor" means any of the Senior Lender or the

Junior Creditors, or any successor or assignee of any of them, or any future

holder of Senior Indebtedness or Junior Indebtedness, respectively.

 

                  "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 Documents" means, collectively, the Senior Loan

Agreement, the Senior Security Documents, any other Loan Document 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, claims, debts, liabilities, obligations,

interest, expenses and fees of the Obligors owing to the Senior Lender under the

Senior 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, replacements, or, to the extent permitted in Section 14(a)

hereof, extensions of such amounts, provided, that, for purposes of this

Agreement, the term "Senior Indebtedness" shall not include the Term Loan B

Indebtedness or any refinancing, renewal, refunding, replacement, or extension

thereof.

 

                  "Senior Lender" has the meaning set forth in the preamble to

this Agreement and shall include all subsequent holders of the Senior

Indebtedness, including any lender or group of lenders that any time refinances,

renews, refunds or replaces the Senior Indebtedness.

 

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                  "Senior Loan Agreement" has the meaning set forth in the

Recitals to this Agreement.

 

                  "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.

 

                  "Term Loan B" has the meaning set forth for such term in the

Senior Loan Agreement.

 

                  "Term Loan B Documents" means, collectively, the Senior Loan

Agreement, the Senior Security Documents, any other Loan Document and any other

document instrument or agreement now existing or in the future entered into

evidencing, documenting, securing or otherwise relating to the Term Loan B

Indebtedness or the Collateral as it relates to the Term Loan B Lender, together

with, to the extent not prohibited by Section 14(a) of this Agreement, any

amendments, replacements, substitutions, or restatements thereof.

 

                  "Term Loan B Indebtedness" means any and all presently

existing or hereafter arising indebtedness, claims, debts, liabilities,

obligations, interest, expenses and fees of the Obligors owing to the Term Loan

B Lender pursuant to the Senior Documents with respect to the Term Loan B.

 

                  "Term Loan B Lender" means ABLECO Finance LLC solely in its

capacity as the holder of the Term Loan B Indebtedness.

 

                  "Tudor Notes" means those certain subordinated secured

promissory notes, each dated April 1, 2005, made by Parent (i) in favor of Tudor

BVI Global Portfolio Ltd. in the original principal amount of $731,776.32, (ii)

in favor of Raptor Global Portfolio Ltd., in the original principal amount of

$455,953.87, and (iii) in favor of Tudor Arbitrage Partners L.P. in the original

principal amount of $224,769.81.

 

                  "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

 

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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.

 

            2.     Subordination of Junior Indebtedness.

 

                  2.1    Blockage of Payments to the Junior Noteholders. (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 owing to any

Junior Creditor shall be made by or on behalf of the Obligors, and the Junior

Creditors will not ask, demand, sue 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 an Event of Default (as defined in any Senior Loan

Document).

 

                  (b)    If at any time following a blockage of payments to the

Junior Creditors pursuant to paragraph (a) of this Section 2.1 (the "Payment

Blockage Period"), the Junior Creditors are no longer prohibited from receiving

any payments with respect to the Junior Indebtedness by Section 2.1(a), the

Junior Creditors shall be entitled to receive, upon the expiration of the

applicable Payment Blockage Period, all payments with respect to the Junior

Indebtedness that have been blocked, and any late payment charges, together with

any default interest to the extent provided for by the applicable Junior

Documents provided that, notwithstanding anything to the contrary contained in

the Junior Documents, the Borrowers shall be permitted to pay and the applicable

Junior Creditor shall be entitled to receive, only accrued interest on and

scheduled principal amortization payments in respect of the Junior Indebtedness

pursuant to the terms of the applicable Junior Documents as in effect on the

date hereof.

 

                  (c)    Nothing contained in this Section 2.1 shall be deemed to

prohibit or restrict the Junior Creditors from exercising its rights and

remedies not prohibited under this Agreement, so long as any payment or

distribution of cash, assets or securities of any Obligor received by any such

Junior Creditor pursuant to such exercise of rights and remedies prior to all

Senior Indebtedness being Paid in Full shall be held by the applicable Junior

Creditor in trust for and paid over to the Senior Lender for application to the

Senior Indebtedness until such Senior Indebtedness is Paid in Full.

 

                  2.2    Prohibition of Payments of Junior Indebtedness on

Acceleration or in Bankruptcy Case. (a) Upon (i) any acceleration of the

principal amount due on any Junior Indebtedness or (ii) 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 any Junior Creditor 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 applicable Junior Creditor if received by

them,

 

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directly to the Senior Lender, to the extent necessary to result in all

Senior Indebtedness being Paid in Full, before any payment or distribution is

made to the Junior Creditors.

 

                  (b)    In any Bankruptcy Case by or against any Obligor,

 

                        (i)    the Senior Lender may, and is hereby irrevocably

authorized and empowered (in its own name or in the name of the applicable

Junior Creditors or otherwise), but shall have no obligation, to, (A) demand,

sue 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 Lender may reasonably deem necessary or advisable for the exercise or

enforcement of any of the rights or interests of the Senior Lender hereunder,

provided that the Senior Lender may only file claims and proofs of claims in

respect of the Junior Indebtedness (except for the Junior Indebtedness owing to

the Senior Lender in respect of the Term Loan B Indebtedness) if (1) the Junior

Noteholders have failed to file such claims and proofs of claim and (2) there

shall remain not more than 30 days before such action is barred, prohibited or

otherwise cannot be taken; and

 

                        (ii)   the Junior Creditors will duly and promptly take

such action as the Senior Lender may reasonably request (A) to collect the

Junior Indebtedness for the account of the Senior Lender and to file appropriate

claims or proofs of claim with respect thereto, (B) to execute and deliver to

the Senior Lender such powers of attorney, assignments or other instruments as

the Senior Lender 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 Lender any and all payments or distributions which may be

payable or deliverable upon or with respect to the Junior Indebtedness.

 

                  2.3    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 b