EX-4.10.1 First Amendment to Subordination and Int



 





Exhibit 4.10.1




FIRST AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT




     This FIRST AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT (this “Amendment”)
is dated as of June 29, 2007, and is entered into among LAMINAR DIRECT CAPITAL, L.P., a Delaware
limited partnership (“Laminar”, and, together with any other Person that becomes a party to
the Subordination Agreement (as defined below) as a “Subordinated Creditor” pursuant to a
Subordinated Creditor Supplement (as defined in the Subordination Agreement), each, a
“Subordinated Creditor”, and collectively, “Subordinated Creditors”), SECURUS
TECHNOLOGIES, INC., a Delaware corporation (“Company”), the Subsidiaries of Company party
hereto (collectively, “Subsidiary Guarantors” and, together with Company, collectively,
“Debtors”) and ING CAPITAL LLC, as Agent for all Senior Creditors (as defined in the
Subordination Agreement) party to the Senior Credit Agreement (as defined below) (“Agent”).



RECITALS:




     WHEREAS, Debtors, Agent and the other Senior Creditors have entered into a Credit Agreement
dated as of September 9, 2004 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the “Senior Credit Agreement”);



     WHEREAS, as an inducement and one of the conditions precedent to the agreement of Agent and
the other Senior Creditors to consummate the transactions contemplated by the Senior Credit
Agreement, Agent and the other Senior Creditors required the Debtors and the Subordinated Creditors
to execute and deliver that certain Subordination and Intercreditor Agreement dated as of September
9, 2004 (as amended from time to time, the “Subordination Agreement”; capitalized terms
used herein and not otherwise defined shall have the meaning ascribed to such terms in the
Subordination Agreement);



     WHEREAS, Debtors, Agent and the other Senior Creditors have agreed to amend the Senior Credit
Agreement pursuant to that Consent and Third Amendment to Credit Agreement dated as of even date
herewith (the “Third Amendment”); and



     WHEREAS, in connection with the execution and delivery of the Third Amendment, Debtors,
Subordinated Creditors, Debtors, and Agent, on behalf of the Senior Creditors, have agreed to amend
the Subordination Agreement on the terms and conditions set forth herein;



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:



     SECTION 1. AMENDMENTS TO THE SUBORDINATION AGREEMENT



     1.1. Section 2.3 of the Subordination Agreement, Subordinated Debt Payment
Restrictions, is hereby modified and amended by deleting subsection (a) thereof in its entirety
and by inserting the following in lieu thereof:



 









 






     (a) Notwithstanding the terms of the Subordinated Debt Documents,
each Debtor hereby agrees that it may not make, and each Subordinated Creditor
hereby agrees that it will not accept, any Distribution with respect to the
Subordinated Debt until all Senior Debt is indefeasibly paid in full in cash to the
satisfaction of Senior Creditors and all commitments to lend under the senior Debt
Documents shall have been terminated; provided, however, that
Company may make, and each Subordinated Creditor may accept, (i) PIK Subordinated
Debt Payments, (ii) so long as no Senior Default exists or would be caused thereby
and Distributable Cash Flow is available therefor, cash payments of interest on the
Subordinated Debt due and payable on a non-accelerated basis in accordance with the
terms of the Subordinated Debt Documents, and (iii) to the extent any Holders (as
defined in the Indenture, as defined in the Senior Credit Agreement) have not
elected to have their Securities (as defined in the Indenture, as defined in the
Senior Credit Agreement) redeemed pursuant to an Excess Cashflow Offer (as defined
in the Indenture, as defined in the Senior Credit Agreement) as permitted by Section
8.14(b)(iii) or (iv) of the Senior Credit Agreement, so long as no Senior Default
exists, cash payments on accrued interest in accordance with the Subordinated Note
Documents as they exist on the date hereof or as amended as permitted by this
Agreement; provided, however in no event shall the amount of
Distributions made pursuant to this Section 2.3(a)(iii) in any calendar year,
together with the amount of any repurchase of Securities (as defined in the
Indenture, as defined in the Senior Credit Agreement) made with respect to such
calendar year under Section 8.14(b)(iii) and 8.14 (b)(iv) of the Senior Credit
Agreement, exceed the Excess Cash Flow Amount (as defined in the Indenture, as
defined in the Senior Credit Agreement) for such calendar year.



     SECTION 2. MISCELLANEOUS



     2.1. NO OTHER AMENDMENTS. Except for the amendments set forth above, the text of the
Subordination Agreement shall remain unchanged and in full force and effect, and Agent, on behalf
of the Senior Creditors, the Subordinated Creditors and Debtors hereby ratify and confirm their
obligations thereunder.



     2.2. ACKNOWLEDGMENT OF VALIDITY AND ENFORCEABILITY OF FINANCING DOCUMENTS. To the
extent of any inconsistencies between the terms and provisions of this Amendment and the terms and
provisions of the Subordination Agreement, this Amendment shall govern. In all other respects, the
Subordination Agreement shall remain in full force and effect.



     2.3. CONDITIONS PRECEDENT. This Amendment shall become effective and be deemed
effective as of the date hereof, upon the occurrence of each of the following:



          (a) Agent shall have received counterparts of this Amendment, duly executed and delivered by
Agent, Subordinated Creditors and the Debtors; and




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          (b) Agent shall have received counterparts of the amendment to the Third Amendment, duly
executed by the parties thereto, and all conditions precedent to the effectiveness of such
amendment shall have been satisfied.




     2.4. SOLE BENEFIT OF PARTIES. This Amendment is solely for the benefit of the parties
hereto and their respective successors and assigns, and no other person shall have any right,
benefit or interest under or because of the existence of this Amendment.



     2.5. SECTION TITLES. The section titles contained in this Amendment are included for
the sake of convenience only, shall be without substantive meaning or content of any kind
whatsoever, and are not a part of the agreement between the parties.



     2.6. REFERENCE TO AND EFFECT ON THE SUBORDINATION AGREEMENT. On and after the date
hereof, each reference in the Subordination Agreement to “this Agreement”, “hereunder”, “hereof” or
words of like import referring to the Subordination Agreement shall mean and be a reference to the
Subordination Agreement as amended hereby.



     2.7. SEVERABILITY. The provisions of this Amendment are independent of and separable
from each other, and no such provision shall be affected or rendered invalid or unenforceable by
virtue of the fact that for any reason any other such provision may be invalid or unenforceable in
whole or in part. If any provision of this Amendment is prohibited or unenforceable in any
jurisdiction, such provision shall be ineffective in such jurisdiction only to the extent of such
provision or unenforceability, and such prohibition or unenforceability shall not invalidate the
balance of such provision to the extent it is not prohibited or unenforceable nor render prohibited
or unenforceable such provision in any other jurisdiction.



     2.8. ENTIRE AGREEMENT. The Subordination Agreement, as amended by this Amendment,
constitutes the entire agreement and understanding between the parties hereto with respect to the
transactions contemplated hereby and supersedes all prior negotiations, understandings and
agreements between such parties with respect to such transaction.



     2.9. APPLICABLE LAW. THIS AMENDMENT AND THE TRANSACTIONS EVIDENCED HEREBY SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK AND ALL
APPLICABLE FEDERAL LAWS OF THE UNITED STATES OF AMERICA.



     2.10. COUNTERPARTS. This Amendment may be executed by one or more of the parties
hereto in any number of separate counterparts, each of which shall be deemed an original and all of
which, taken together, shall be deemed to constitute one and the same instrument. Delivery of an
executed counterpart of this Amendment by facsimile transmission or by electronic mail in PDF form
shall be as effective as delivery of a manually executed counterpart thereof.



     2.11. LOAN DOCUMENT. This Amendment shall be deemed a Loan Document for all purposes.



[Remainder of page intentionally left blank.]




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date first set forth above, by their respective duly authorized officers.



	 	 	 	 	 
	 	SUBORDINATED CREDITORS:





LAMINAR DIRECT CAPITAL, L.P., a Delaware limited partnership

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



First Amendment to Subordination and Intercreditor Agreement





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	 	DEBTORS:





SECURUS TECHNOLOGIES, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	T-NETIX, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	TELEQUIP LABS, INC., a Nevada corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	T-NETIX TELECOMMUNICATIONS SERVICES,
INC., a Texas corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	SPEAKEZ, INC., a Colorado corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	T-NETIX MONITORING CORPORATION,

a Colorado corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



First Amendment to Subordination and Intercreditor Agreement





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	 	EVERCOM HOLDINGS, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	EVERCOM, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	EVERCOM SYSTEMS, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	FORTUNELINX, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	EVERCONNECT, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	SYSCON JUSTICE SYSTEMS, INC., a California

corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	MODELING SOLUTIONS LLC, a Nevada
limited liability company

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



First Amendment to Subordination and Intercreditor Agreement





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	 	MODELING SOLUTIONS, LLC, a Wisconsin
limited liability company

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



First Amendment to Subordination and Intercreditor Agreement





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	 	AGENT:





ING CAPITAL LLC, a

Delaware corporation, as Agent

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 
	 



First Amendment to Subordination and Intercreditor Agreement





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