Exhibit 10.27

THIS CONVERTIBLE PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE OR DISPOSITION MAY BE EFFECTED EXCEPT IN COMPLIANCE WITH RULE 144 UNDER SAID ACT OR AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER SATISFACTORY TO THE PAYOR THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION.

PAYMENTS UNDER THIS CONVERTIBLE SUBORDINATED PROMISSORY NOTE ARE SUBJECT TO THE SUBORDINATION PROVISIONS SET FORTH HEREIN.

MOBILEWALLA HOLDCO, INC.

CONVERTIBLE SUBORDINATE

PROMISSORY NOTE

 

$34,335 USD		Issue Date: December 1, 2025

For value received MOBILEWALLA HOLDCO, INC., a Delaware corporation (“Payor”), promises to pay to Soumita Roy Choudhury or its assigns (“Holder”) the principal sum of $34,335 with simple interest on the outstanding principal amount at the rate of 8% per annum. Interest commenced to run on the Issue Date and shall continue on the outstanding principal until paid in full or converted. Interest shall be computed on the basis of a year of 365 days for the actual number of days elapsed.

1. This convertible subordinate promissory note (the “Note”) is issued as part of a series of substantially identical notes that may be issued in a series of multiple closings before, on or after the date hereof (collectively, the “Notes”) to certain persons and entities (collectively, the “Holders”). The Payor shall maintain a ledger of all Holders. “Majority Holders” mean the holders of Notes representing at least a majority of the aggregate principal amount of the Notes then outstanding.

2. All payments of interest and principal shall be in lawful money of the United States of America and shall be made pro rata among all Holders in accordance with the relative principal amounts of their respective Notes. Subject to the next sentence, all payments shall be applied first to accrued interest until all then outstanding accrued interest has been paid in full, and thereafter to the repayment of principal until all principal has been paid in full. Each of the Notes shall rank equally without preference or priority of any kind over one another, and all payments and recoveries shall be paid and applied ratably and proportionately on all outstanding Notes on the basis of their original principal amount.

3. In the event that after the Issue Date, the Payor issues and sells shares of its Next Round Securities (as defined below) to investors (the “Investors”) in an equity financing with total proceeds to the Payor of not less than $10,000,000 (excluding the conversion of the Notes or other debt), or such lesser amount as may be approved in writing by the Majority Holders (a “Qualified Financing”), then the sum of the entire outstanding principal balance and accrued but unpaid interest (the “Balance”) of this Note (and all outstanding Notes) shall automatically convert without any further action by the Holders into such Next Round Securities on the same terms and conditions as applicable to the Investors and at a conversion price equal to the Conversion Price (as defined below). The number of Next Round Securities to be issued upon conversion of the principal and accrued interest of this Note shall be rounded down to the nearest whole share. For purposes of this Note, the term “Next Round Securities” shall mean the common equity (the “Common Stock”) of the publicly-traded surviving entity in any consolidation, merger or reorganization in which the shares of capital stock of the Payor immediately prior to such consolidation, merger or reorganization continue to represent a majority of the voting power of the surviving entity immediately after such consolidation, merger or reorganization (the “Transaction”) For purposes of this Note, the term

“Conversion Price” means an amount equal to $5.00 per share of Common Stock at the time of the closing of the Transaction. In connection with a conversion to Next Round Securities under this Section 3, Holder shall execute and become a party to the Qualified Financing Agreements and deliver to the Payor this Note or, in the event this Note has been lost, stolen, or destroyed, certain documentation reasonably satisfactory to the Payor and Holder with regard to a lost or stolen Note, including, if required by the Payor, an affidavit of lost note and an indemnification agreement by Holder in favor of the Payor with respect to such lost or stolen Note (“Lost Note Documentation”). The issuance of Next Round Securities to Holder upon conversion of this Note shall constitute satisfaction in full of all obligations of the Payor under this Note, and this Note shall thereafter be of no further force or effect.

In the event that the Note remains outstanding as of November 1, 2026 (as such date is extended from time to time in the Majority Holders’ sole discretion, the “Maturity Date”), the Majority Holders may elect to convert the then outstanding principal of all Notes and all accrued and unpaid interest on all Notes into fully paid and non-assessable shares of the Payor’s capital stock, the class, terms, and price of which will be as determined by mutual agreement of the Majority Holders and the Payor. at the time of conversion. For purposes of this Note, the term “Conversion Securities” shall mean the class or series of Payor’s capital stock issued in connection with a conversion of the Notes pursuant to this Section 4. In connection with a conversion to Conversion Securities under this Section 4, Holder shall execute and become a party to such stockholder agreements as Payor may reasonably request (the “Stockholder Agreements”), to the extent Holder is not already party thereto.

4. Unless this Note has been converted in accordance with the terms of Sections 3 or 4 above, repaid in accordance with the terms of Section 4 above, or accelerated in accordance with the terms of Section 7 below, the Payor may not pay or prepay this Note (either before or after the Maturity Date) without the prior written consent of the Majority Holders.

5. In the event of any default hereunder, Payor shall pay all reasonable attorneys’ fees and court costs incurred by Holder in enforcing and collecting this Note.

6. If there shall be any Event of Default hereunder, at the option and upon the declaration of the Majority Holders and upon written notice to the Payor, this Note shall accelerate, and all principal and unpaid accrued interest shall become due and payable. The occurrence of any one or more of the following shall constitute an Event of Default:

(a) Payor fails to pay timely any of the principal amount due under this Note on the date the same becomes due and payable or any accrued interest or other amounts due under this Note on the date the same becomes due and payable;

(b) Payor files any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes any corporate action in furtherance of any of the foregoing; or

(c) An involuntary petition is filed against Payor (unless such petition is dismissed or discharged within sixty (60) days under any bankruptcy statute now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is appointed to take possession, custody or control of any property of Payor.

7. Payor hereby waives demand, notice, presentment, protest and notice of dishonor.

8. Provisions Relating To Stockholders Rights.

(a) Rights as Investor. Upon conversion of this Note (i) in connection with the Qualified Financing, Holder shall be entitled to the rights and be subject to all other obligations of the investors in the Next Round Securities issued in the Qualified Financing, Subject to Holder’s execution of the Qualified Financing Agreements, or (ii) pursuant to Section 4 above, Holder shall be entitled to the rights and subject to all other obligations of the investors in the Conversion Securities, subject to Holder’s execution of the Stockholder Agreements.

(b) Registration Rights. The Payor confirms that Holder has been granted registration rights with respect to the Common Stock of the Payor issuable upon conversion of the Next Round Securities or Conversion Securities, as applicable, issued upon conversion of this Note under that certain Amended & Restated Investors’’ Rights Agreement, as the same may be amended from time to time (the “Investors’ Rights Agreement”), subject to Holder’s execution of such agreement.

(c) “Market Stand-Off” Agreement. Holder hereby agrees that Holder shall be bound by the market standoff provision set forth in Investors’ Rights Agreement.

(d) No Voting or Other Rights. This Note does not entitle Holder to any voting rights or other rights as a stockholder of the Payor, unless and until (and only to the extent that) this Note is actually converted into shares of the Payor’s capital stock in accordance with its terms. In the absence of conversion of this Note into Next Round Securities or Conversion Securities, no provisions of this Note and no enumeration herein of the rights or privileges of Holder, shall cause Holder to be a stockholder of the Payor for any purpose.

9. Representations And Warranties Of Payor. Payor hereby represents and warrants to Holder that the statements in the following paragraphs of this Section 10 are all true and complete as of the date hereof.

(a) Organization, Good Standing and Qualification. Payor has been duly incorporated and organized, and is validly existing in good standing, under the laws of the State of Delaware. Payor has the corporate power and authority to own and operate its properties and assets and to carry on its business as currently conducted.

(b) Due Authorization. All corporate action on the part of Payor’s board of directors and shareholders necessary for the authorization, execution, delivery of, and the performance of all obligations of Payor under this Note has been taken prior to the date hereof, other than the authorization of the capital stock to be issued in a Qualified Financing. This Note constitutes a valid and legally binding obligation of Payor, enforceable against Payor in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and (ii) the effect of rules of law governing the availability of equitable remedies.

(c) Corporate Power. Payor has the corporate power and authority to issue, execute and deliver this Note and to carry out and perform all its obligations under this Note.

(d) Valid Issuance. The Next Round Securities issuable upon conversion of the Notes, when issued, sold and delivered in accordance with the terms of this Note for the consideration provided for herein, will be duly and validly issued, fully paid and nonassessable.

10. Representations, Warranties And Certain Agreements Of Holder. Holder hereby represents and warrants to, and agrees with Payor as follows.

(a) Authorization. This Note constitutes Holder’s valid and legally binding obligations, enforceable against Holder in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and (ii) the effect of rules of law governing the availability of equitable remedies. Holder represents and warrants to Payor that Holder has full power and authority to enter into this Note.

(b) Purchase for Own Account. This Note, the Next Round Securities, the Conversion Securities, and Payor’s Common Stock issuable upon conversion of such Next Round Securities (or Conversion Securities, if applicable) (collectively, the “Securities”) are being and will be acquired for investment for Holder’s own account, not as a nominee or agent, and not with a view to the public resale or distribution thereof within the meaning of the Act, and Holder has no present intention of selling, granting any participation in, or otherwise distributing the same.

(c) No Solicitation. At no time was Holder presented with or solicited by any publicly issued or circulated newspaper, mail, radio, television or other form of general advertising or solicitation in connection with the offer, sale and purchase of the Securities.

(d) Disclosure of Information. Holder has received or has had full access to all the information Holder considers necessary or appropriate to make an informed investment decision with respect to the Securities. Holder further has had an opportunity to ask questions and receive answers from Payor regarding the terms and conditions of the offering of the Securities and to obtain additional information (to the extent Payor possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to Holder or to which Holder had access. The foregoing, however, does not in any way limit or modify the representations and warranties made by Payor in Section 11 hereof.

(e) Investment Experience. Holder understands that the purchase of the Securities involves substantial risk. Holder (i) has experience as a Holder in securities of companies in the development stage and acknowledges that Holder is able to fend for itself, can bear the economic risk of Holder’s investment in the Securities and has such knowledge and experience in financial or business matters that Holder is capable of evaluating the merits and risks of this investment in the Securities and protecting Holder’s own interests in connection with this investment in the Securities or (ii) has a preexisting personal or business relationship with Payor and certain of its officers, directors or controlling persons of a nature and duration that enables Holder to be aware of the character, business acumen and financial circumstances of such persons. Holder acknowledges that any investment in the Securities involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss of its investment.

(f) Accredited Investor Status. Holder is familiar with the definition of, and qualifies as, an “accredited investor” within the meaning of Regulation D promulgated under the Act.

(g) Restricted Securities. Holder understands that the Securities are characterized as “restricted securities” under the Act and Rule 144 since they are being acquired from Payor in a transaction not involving a public offering, and that under the Act and applicable regulations thereunder the Securities may be resold without registration under the Act only in certain limited circumstances. Holder further understands that Payor is under no obligation to register the Securities, and Payor has no present plans to do so. Furthermore, Holder is familiar with Rule 144, as presently in effect, and understands the limitations imposed thereby and by the Act on resale of Securities without such registration. Holder understands that, whether or not the Securities may be resold in the future without registration under the Act, no public market now exists for any of the Securities and that it is uncertain whether a public market will ever exist for the Securities.

(h) Further Limitations on Disposition. Without in any way limiting the representations set forth above, Holder further agrees not to make any disposition of all or any portion of the Securities unless and until:

(i) there is then in effect a registration statement under the Act covering such proposed disposition and such disposition is made in accordance with such effective registration statement; or

(ii) Holder shall have notified Payor of the proposed disposition and shall have furnished Payor with a detailed statement of the circumstances surrounding the proposed disposition, and (ii) if reasonably requested by Payor, Holder shall have furnished Payor with an opinion of counsel, reasonably satisfactory to Payor that such disposition will not require registration of such shares under the Act. It is agreed that Payor will not require opinions of counsel for transactions made pursuant to Rule 144 except in unusual circumstances.

Notwithstanding the provisions of paragraphs (a) and (b) above, no such registration statement or opinion of counsel shall be necessary for a transfer by a Holder that is a partnership or corporation, to a partner of such partnership or a retired partner of such partnership who retires after the date hereof, to any affiliate of such partnership or corporation, or to the estate of any such partner or retired partner or the transfer by gift, will or intestate succession of any partner to his or her spouse or to the siblings, lineal descendants or ancestors of such partner or his or her spouse, if the transferee agrees in writing to be subject to the terms hereof to the same extent as if he or she were the original Holder hereunder.

(i) Legends. In addition to any other legend that may be required by applicable law, Payor’s Certificate of Incorporation, Bylaws, the Qualified Financing Agreements or any other agreement between Payor and Holder, or applicable law, Holder understands and agrees that the certificates evidencing the Securities will bear legends substantially similar to those set forth below:

“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.”

11. This Note shall be governed by and construed under the laws of the State of Delaware, as applied to agreements among Delaware residents, made and to be performed entirely within the State of Delaware, without giving effect to conflicts of laws principles. Any term of this Note may be amended or waived only with the written consent of the Payor and the Majority Holders, and any amendment or waiver approved by the Majority Holders shall be binding on Holder and all other holders of the Notes. The Payor shall promptly give written notice of any such amendment or waiver to the record Holders of the Notes who have not previously consented thereto in writing.

12. In accordance with Section 17 below, this Note may be transferred only to an Affiliate (as described in Rule 144 promulgated under the Securities Act of 1933, as amended) of the Holder only upon its surrender to the Payor for registration of transfer, duly endorsed, or accompanied by a duly executed written instrument of transfer in form satisfactory to the Payor. Thereupon, this Note shall be reissued to, and registered in the name of, the transferee, or a new Note for like principal amount and interest shall be issued to, and registered in the name of, the transferee. Interest and principal shall be paid solely to the registered holder of this Note. Such payment shall constitute full discharge of the Payor’s obligation to pay such interest and principal.

13. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed email or facsimile if sent during normal business hours of the recipient, if not, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the Payor at 5170 Peachtree Road,

Building 100, Suite 100 Atlanta, GA 30341 Attn: Jay D. Clark, with a copy (which shall not constitute notice) To: Lucosky-Brookman, 101 Wood Avenue South, Woodbridge, New Jersey 08830 Attn: Peter Campitiello, and to Holder at the addresses set forth on the signature page of this Note or at such other addresses as the Payor or Holder may designate by ten (10) days advance written notice to the other parties hereto.

14. In no event shall any stockholder, officer or director of the Payor be liable for any amounts due or payable pursuant to this Note.

15. Nothing contained in this Note shall be construed as conferring upon Holder or any other person the right to vote or consent or to receive notice as a stockholder in respect of meetings of stockholders for the election of directors of the Payor or any other matters or any rights whatsoever as a stockholder of the Payor prior to the time that this Note is converted in accordance with the terms of this Note.

16. If one or more provisions of this Note are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Note to the extent they are held to be unenforceable, and the remainder of the Note shall be interpreted as if such provision(s) were so excluded and shall be enforceable in accordance with its terms.

17. Registration of the Note. The Notes shall be registered notes. The Payor will keep at its principal executive office, books for the registration and the registration of transfer of the Note. Prior to presentation of any Note for registration of transfer, the Payor shall treat the individual or entity (the “Person”) in whose name such Note is registered as the owner and holder of such Note for all purposes whatsoever, whether or not such Note shall be overdue, and the Payor shall not be affected by notice to the contrary. Subject to any restrictions on or conditions to transfer set forth in this Note, the holder of this Note, at its option, may in person or by duly authorized attorney surrender the same for exchange at the Payor’s chief executive office, and promptly thereafter and at the Payor’s expense receive in exchange therefore one or more new Note(s), each in the principal requested by such holder, dated the date to which interest shall have been paid on the Note so surrendered or, if no interest shall have yet been so paid, dated the date of the Note so surrendered and registered in the name of such Person or Persons as shall have been designated in writing by such holder or its attorney for the same principal amount as the then unpaid principal amount of the Note so surrendered.

18. NOTICE REGARDING ORAL COMMITMENTS. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING PAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER NEW YORK LAW.

19. Subordination; Priority. The Notes will be subordinate in right of payment to all indebtedness of the Payor for borrowed money to banks, commercial finance lenders or other institutions regularly engaged in the business of lending money (whether or not such indebtedness is secured), including pursuant to that certain Subordination Agreement, dated on or about the date hereof, by and among the Majority Holders, Avenue Venture Opportunities Fund, L.P., Payor, and the other Creditors (as each term is defined therein).

[Signature page follows]

IN WITNESS WHEREOF, the Payor has caused this Convertible Promissory Note to be signed in its name as of the date first written above.

 

 

AGREED AND ACKNOWLEDGED:
HOLDER
By:		/s/ Soumita Roy Choudhury
Name:		Soumita Roy Choudhury
Title:
Address:
76 Bayshore Road, # 30-19,
Singapore, S469990
+65 98360049
soumitaroychoudhury@gmail.com

SUBORDINATION AGREEMENT

This Subordination Agreement is made as of December 1, 2025, by and among each of the undersigned creditors (individually, a “Creditor” and, collectively, the “Creditors”), MOBILEWALLA HOLDCO, INC. (“Borrower”), and AVENUE VENTURE OPORTUNITIES FUND , L.P. (“Agent”), in its capacity as administrative and collateral agent for itself and the Lenders (as defined in the Loan Agreement (as defined below)).

Recitals

A. Borrower has requested and/or obtained certain loans or other credit accommodations from Lenders which are or may be from time to time secured by assets and property of Borrower pursuant to the terms of that certain Loan and Security Agreement dated May 22, 2023, as modified by that certain First Amendment to Loan and Security Agreement and Supplement dated as of the date hereof, by and between Borrower, Agent and Lenders (as may be subsequently amended from time to time, the “Loan Agreement”).

B. Each Creditor has extended loans or other credit accommodations to Borrower, and/or may extend loans or other credit accommodations to Borrower from time to time, subject to the terms of the Loan Agreement.

C. Each Creditor is willing to subordinate: (i) all of Borrower’s indebtedness and obligations to such Creditor, whether presently existing or arising in the future (the “Subordinated Debt”) to all of Borrower’s indebtedness and obligations to Agent and Lenders; and (ii) all of such Creditor’s security interests, if any, in Borrower’s property, to all of the Agent’s security interests in the Borrower’s property.

NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:

1. Each Creditor subordinates to Agent any security interest or lien that such Creditor may have in any property of Borrower. Notwithstanding the respective dates of attachment or perfection of the security interest of a Creditor and the security interest of Agent, the security interest of Agent in the Collateral, as defined in the Loan Agreement, shall at all times be prior to the security interest of such Creditor. Capitalized terms not otherwise defined herein shall have the same meaning as in the Loan Agreement.

2. All Subordinated Debt is subordinated in right of payment to all obligations of Borrower to Agent and Lenders now existing or hereafter arising, together with all costs of collecting such obligations (including attorneys’ fees), including, without limitation, all interest accruing after the commencement by or against Borrower of any Bankruptcy, reorganization or similar proceeding, and all obligations under the Loan Agreement (the “Senior Debt”).

3. Each Creditor will not demand or receive from Borrower (and Borrower will not pay to such Creditor) all or any part of the Subordinated Debt, by way of payment, prepayment, setoff, lawsuit or otherwise, nor will such Creditor exercise any remedy with respect to the Collateral, nor will such Creditor commence, or cause to commence, prosecute or participate in any administrative, legal or equitable action against Borrower, for so long as any portion of the Senior Debt remains outstanding, provided a Creditor may convert any part of Subordinated Debt into equity securities of Borrower in accordance with the terms of any notes evidencing such Subordinated Debt.

4. Each Creditor shall promptly deliver to Agent in the form received (except for endorsement or assignment by such Creditor where required by Agent) for application to the Senior Debt any payment, distribution, security or proceeds received by such Creditor with respect to the Subordinated Debt other than in accordance with this Agreement.

 

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5. In the event of Borrower’s insolvency, reorganization or any case or proceeding under any Bankruptcy or insolvency law or laws relating to the relief of debtors, these provisions shall remain in full force and effect, and Agent’s and Lenders’ claims against Borrower shall be paid in full before any payment is made to any Creditor.

6. For so long as any of the Senior Debt remains unpaid, each Creditor irrevocably appoints Agent as such Creditor’s attorney-in-fact, and grants to Agent a power of attorney with full power of substitution, in the name of such Creditor or in the name of Agent, for the use and benefit of Agent, without notice to such Creditor, to perform at Agent’s option the following acts in any Bankruptcy, insolvency or similar proceeding involving Borrower:

(i) To file the appropriate claim or claims in respect of the Subordinated Debt on behalf of Creditor if Creditor does not do so prior to 30 days before the expiration of the time to file claims in such proceeding and if Agent elects, in its sole discretion, to file such claim or claims; and

(ii) To accept or reject any plan of reorganization or arrangement on behalf of Creditor and to otherwise vote Creditor’s claims in respect of any Subordinated Debt in any manner that Agent deems appropriate for the enforcement of its rights hereunder.

7. In the event of Borrower’s insolvency, reorganization or any case or proceeding, arrangement or transaction under any federal or state bankruptcy or insolvency law or similar laws or proceedings involving the Borrower, for so long as any of the Senior Debt remains unpaid, if the Agent, the Lenders or any of them shall seek to provide the Borrower or any other Loan Party with any financing under Section 364 of the Bankruptcy Code , or Agent or Lenders support or consent to such financing provided by a third party, or consent to any order for the use of cash collateral under Section 363 of the Bankruptcy Code (each, a “DIP Financing or “Cash Collateral Use”), with such DIP Financing or Cash Collateral Use to be secured by all or any portion of the Collateral (including assets that, but for the application of Section 552 of the Bankruptcy Code (or any similar provision of any foreign laws relating to the relief of debtors) would be Collateral), then each Creditor agrees that it will raise no objection and will not support, directly or indirectly, any objection to such DIP Financing or Cash Collateral Use nor object to the liens or claims granted in connection therewith on any grounds, including a failure to provide “adequate protection” for the liens, if any, securing any Subordinated Debt (and will not request any adequate protection as a result of such DIP Financing or Cash Collateral Use, and will not support any debtor-in- possession financing or Cash Collateral Use which would compete with such DIP Financing or Cash Collateral Use which is provided to or consented to by Agent or Lenders). In addition, each Creditor agrees that it will not provide nor seek to provide or support any debtor-in-possession financing without the prior written consent of the Agent.

8. Each Creditor shall immediately affix a legend to the instruments evidencing the Subordinated Debt stating that the instruments are subject to the terms of this Agreement. No amendment of the documents evidencing or relating to the Subordinated Debt shall directly or indirectly modify the provisions of this Agreement in any manner which might terminate or impair the subordination of the Subordinated Debt or the subordination of the security interest or lien that such Creditor may have in any property of Borrower. In addition, such instruments shall not be amended to (i) increase the rate of interest with respect to the Subordinated Debt, or (ii) accelerate the payment of the principal or interest or any other portion of the Subordinated Debt.

9. This Agreement shall remain effective for so long as Agent or Lenders have any obligation to make credit extensions to Borrower or Borrower owes any amounts to Agent or Lenders under the Loan Agreement or otherwise. If, at any time after payment in full of the Senior Debt any payments of the Senior Debt must be disgorged by Agent or Lenders for any reason (including, without limitation, the Bankruptcy of Borrower), this Agreement and the relative rights and priorities set forth herein shall be reinstated as to all such disgorged payments as though such payments had not been made and each Creditor shall immediately pay over to Agent all payments received with respect to the Subordinated Debt to the extent that such payments would have been prohibited hereunder. At any time and from time to time, without notice to Creditors, Agent or Lenders may take such actions with respect to

 

 

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the Senior Debt as Agent and Lenders, respectively, in its sole discretion, may deem appropriate, including, without limitation, terminating advances to Borrower, increasing the principal amount (which may include any DIP Financing), extending the time of payment, increasing applicable interest rates, renewing, compromising or otherwise amending the terms of any documents affecting the Senior Debt and any collateral securing the Senior Debt, and enforcing or failing to enforce any rights against Borrower or any other person. No such action or inaction shall impair or otherwise affect Agent’s or Lenders’ rights hereunder.

10. This Agreement shall bind any successors or assignees of a Creditor and shall benefit any successors or assigns of Agent. This Agreement is solely for the benefit of each Creditor, Agent and Lender and not for the benefit of Borrower or any other party. Each Creditor further agrees that if Borrower is in the process of refinancing a portion of the Senior Debt with a new lender, and if Agent makes a request of such Creditor, Creditor shall agree to enter into a new subordination agreement with the new lender on substantially the terms and conditions of this Agreement.

11. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

12. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of California, without regard to principles of conflicts of law. Jurisdiction shall lie in the State of California. THE UNDERSIGNED ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER DOCUMENT, INSTRUMENT OR AGREEMENT BETWEEN THE UNDERSIGNED PARTIES. If the jury waiver set forth in this Section is not enforceable, then any dispute, controversy or claim arising out of or relating to this Agreement or any of the transactions contemplated herein shall be resolved by judicial reference pursuant to Code of Civil Procedure Section 638 et seq before a mutually acceptable referee or, if none is selected, then a referee chosen by the Presiding Judge of the California Superior Court for Santa Clara County, provided this provision shall not restrict any party from seeking to enforce any prejudgment remedies.

13. This Agreement represents the entire agreement with respect to the subject matter hereof, and supersedes all prior negotiations, agreements and commitments. No Creditor is relying on any representations by Agent, Lenders or Borrower in entering into this Agreement, and each Creditor has kept and will continue to keep itself fully apprised of the financial and other condition of Borrower. This Agreement may be amended only by written instrument signed by each Creditor and Agent.

14. In the event of any legal action to enforce the rights of a party under this Agreement, the party prevailing in such action shall be entitled, in addition to such other relief as may be granted, all reasonable costs and expenses, including reasonable attorneys’ fees, incurred in such action.

 

 

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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.

 

[CREDITOR SIGNATURE PAGES FOLLOW]

 

 

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