INTER-CREDITOR AGREEMENT



Exhibit 10.4

 

INTER-CREDITOR AGREEMENT

 

THIS
INTER-CREDITOR AGREEMENT (this “Agreement”) is made and effective
as of July 28,  2008, by and between (i) the holders of the Original Issue
Discount Senior Secured Convertible Debentures of Blink Logic Inc., a Nevada
corporation (f/k/a Datajungle Software Inc., a Nevada corporation) (the
“Company”) due September 28, 2009 (the “September Creditors”),
(ii) the holder of the Company’s Original Issue Discount Senior Secured
Convertible Debentures due June 12, 2010 (the “June Creditor” and
collectively with the September Creditors, the “Existing Creditors”) and
(iii) the New Creditors (as defined below) (the Existing Creditors and the New
Creditors are collectively referred to as the “Creditors”).

 

RECITALS

 

WHEREAS,
the September Creditors are the parties to that certain Securities Purchase
Agreement dated September 28, 2007 (the “September Purchase Agreement”)
by and between each of the September Creditors and the Company and are the
holders of those Original Issue Discount Senior Secured Convertible Debentures
due September 28, 2009 and dated September 28, 2007, for an aggregate total
Principal Amount of up to $4,070,000 executed by the Company in favor of the
September Creditors (the “September Indebtedness”), and the September
Creditors are the beneficiaries of that certain Security Agreement dated
September 28, 2007 (the “September Security Agreement”) between the
Company, all of its Subsidiaries (as defined therein) and the September
Creditors and Enable Growth Partners L.P., as collateral agent for the benefit
of the September Creditors (the “September Collateral Agent”) pursuant to
which the September Indebtedness is secured by all of the assets of the
Company;

 

WHEREAS,
the June Creditor is the party to that certain Securities Purchase Agreement
dated June 12, 2008 (the “June Purchase Agreement”) by and between the
June Creditor and the Company and is the holder of that certain Original Issue
Discount Senior Secured Convertible Debenture due June 12, 2010 and dated June
12, 2008, for an aggregate total Principal Amount of up to $444,400 executed by
the Company in favor of the June Creditor (the “June Indebtedness” and
together with the September Indebtedness, the “Existing Indebtedness”),
and the June Creditor is the beneficiary of that certain Security Agreement
dated June 12, 2008 (the “June Security Agreement” and together with the
September Security Agreement, the “Security Agreements”) between the
Company, all of its Subsidiaries (as defined therein) and the June Creditor and
Enable Growth Partners L.P., as collateral agent for the benefit of the June
Creditor (the “June Collateral Agent”) pursuant to which the June
Indebtedness is secured by all of the assets of the Company;

 

WHEREAS,
pursuant to that certain Securities Purchase Agreement dated July 28, 2008 (the
“July Purchase Agreement” and together with the September Purchase
Agreement and the June Purchase Agreement, the “Purchase Agreements”),
the investors signatory thereto (the “New Creditors”) will be purchasing
up to $3,333,000, in the aggregate, in Principal Amount of Original Issue
Discount Senior Secured Convertible Debentures due July 28, 2010 from the
Company (the “New Indebtedness” and together with the Existing
Indebtedness, the “Indebtedness”);

 

WHEREAS,
the New Indebtedness will also be secured by all assets of the Company;

 

    
WHEREAS, the Creditors intend that the New Indebtedness and the Existing
Indebtedness be secured by all assets of the Company on a pari
passu basis;

 

WHEREAS,
the Creditors wish to memorialize their agreements concerning their respective
rights, duties and obligations to one another with respect to the security
interests granted under the Indebtedness.

 

    
NOW, THEREFORE, in consideration of the mutual covenants herein, their
respective performances and benefits pertaining to the Indebtedness, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:

 

1.             
Ranking.

 

1.1           
The Indebtedness shall rank in the following order of priority:  any
sums secured or owed to the Existing Creditors or the New Creditors, pari
passu and pro-rata in proportion to such Creditor’s
outstanding principal amounts of Indebtedness at any given time that a
determination needs to be made of pro-rata holdings. For clarity, as of the date
of this Agreement, the pro-rata holdings of the Existing Creditors
(collectively) are $___________ and the pro-rata holdings of the
New Creditors (collectively) are $[__________].  The Creditors authorize
the respective Collateral Agent to perform its obligations under the Security
Agreements pursuant to this provision.  

 

1.2      
If an Event of Default (as defined under any Indebtedness) occurs and any party
hereto receives payment from the Company not in compliance with this Agreement,
the other parties hereto shall be immediately notified and such payment shall be
shared with all of the other Creditors in proportion to their respective
pro-rata holdings as set forth above.

 

1.3      
If an Event of Default occurs and any party hereto collects proceeds pursuant to
its rights under any Indebtedness, the other parties shall be immediately
notified and such payment shall be shared with all of the other Creditors as set
forth above.

 

1.4           
Notwithstanding any other provision in this Agreement, adjustments shall
be made between the Creditors from time to time to reflect the fact that any
contingent obligation taken into account as an obligation under the Indebtedness
becomes satisfied or incapable of maturing into an actual obligation.

 

1.5           
Notwithstanding anything to the contrary contained in the Purchase
Agreements or  any document executed in connection with the New
Indebtedness or the Existing Indebtedness and irrespective of: (i) the time,
order or method of attachment or perfection of the security interests created in
favor of Existing Creditors and the New Creditors, (ii) the time or order of
filing or recording of financing statements or other documents filed or recorded
to perfect security interests in any collateral; (iii) anything contained in any
filing or agreement to which any Creditor now or hereafter may be a party; and
(iv) the rules for determining perfection or priority under the Uniform
Commercial Code or any other law governing the relative priorities of secured
creditors, each Creditor acknowledges that (x) all other Creditors have a valid
security interest in the Collateral and (y) the
security interests of the Creditors in any Collateral pursuant to any
outstanding Indebtedness shall be pari-passu with each other.

 

1.6           
Each Creditor agrees not to commence any action or proceeding concerning
the Indebtedness or the Collateral without providing at least one business day’s
notice to all Creditors.

 

2.        
Indemnification by Existing Creditors.  Existing Creditors shall
indemnify, defend, and hold harmless New Creditors against and in respect of any
and all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies, including interest, penalties, and
reasonable professional and attorneys’ fees, including those arising from
settlement negotiations, that New Creditors shall incur or suffer, which arise,
result from, or relate to a breach of, or failure by Existing Creditors to
perform under this Agreement.

 

3.        
Indemnification by New Creditors.  New Creditors shall indemnify,
defend, and hold harmless Existing Creditors against and in respect of any and
all claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries, and deficiencies, including interest, penalties, and reasonable
professional and attorneys’ fees, including those arising from settlement
negotiations, that  Existing Creditors shall incur or suffer, which arise,
result from, or relate to a breach of, or failure by New Creditors to perform
under this Agreement.

 

4.        
Miscellaneous.

 

4.1      
Assignment.  The rights and obligations of the Creditors under this
Agreement may be assigned to or assumed to a transferee of the Debentures (as
defined in the respective Purchase Agreements), as applicable.

 

4.2      
Binding Effect.  This Agreement shall be binding on, and shall inure
to the benefit of, the parties to it and their respective heirs, legal
representatives, and successors.

 

4.3      
Parties in Interest.  Except as expressly provided in this
Agreement, nothing in this Agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any
persons other than the parties to it and their respective successors and
assigns, nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement, nor
shall any provision give any third persons any right to subrogation or action
against any party to this Agreement.

 

4.4      
Entire Agreement.  This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter contained in it and
supersedes all prior and contemporaneous agreements, representations and
understandings of the parties.  

 

4.5      
Amendment.  No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by all the parties.

 

4.6      
Waiver.  No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver.  No waiver
shall be binding unless executed in writing by the party
making the waiver.

 

4.7      
Notices.  Notices given under this Agreement shall be delivered as
set forth in the Purchase Agreements.

 

4.8      
Governing Law and Venue.  This Agreement shall be construed in
accordance with, and governed by, the laws of the State of New York, and any
action or proceeding, including arbitration, brought by any party in which this
Agreement is a subject, shall be brought in New York County, New York.

 

4.9      
Effect of Headings.  The headings of the Sections of this Agreement
are included for purposes of convenience only, and shall not affect the
construction or interpretation of any of its provisions.

 

4.10    
Invalidity.  Any provision of this Agreement which is invalid, void,
or illegal, shall not affect, impair, or invalidate any other provision of this
Agreement, and such other provisions of this Agreement shall remain in full
force and effect.

 

4.11    
Counterparts.  This Agreement may be executed in multiple
counterparts, each of which may be executed by less than all of the parties and
shall be deemed to be an original instrument which shall be enforceable against
the parties actually executing such counterparts and all of which together shall
constitute one and the same instrument.  In lieu of the original documents,
a facsimile transmission or copy of the original documents shall be as effective
and enforceable as the original.  

 

4.12    
Number and Gender.  When required by the context of this Agreement,
each number (singular and plural) shall include all numbers, and each gender
shall include all genders.

 

4.13    
Further Assurances.  Each party to this Agreement agrees to execute
further instruments as may be necessary or desirable to carry out this
Agreement, provided the party requesting such further action shall bear all
related costs and expenses.

 

4.14    
Professional Fees and Costs.  If any legal or equitable action,
arbitration, or other proceeding, whether on the merits or on motion, are
brought or undertaken, or an attorney retained, to enforce this Agreement, or
because of an alleged dispute, breach, default, or misrepresentation in
connection with any of the provisions of this Agreement, then the successful or
prevailing party or parties in such undertaking (or the party that would prevail
if an action were brought) shall be entitled to recover reasonable attorney's
fees and other professional fees and other costs incurred in such action,
proceeding, or discussions, in addition to any other relief to which such party
may be entitled.  The parties intend this provision to be given the most
liberal construction possible and to apply to any circumstances in which such
party reasonably incurs expenses.

 

 

*************************


[SIGNATURE PAGE BLKL INTERCREDITOR
AGREEMENT]

 

IN
WITNESS WHEREOF, this Agreement has been duly executed by the Creditors as of
the day and year first written above.

 

 

EXISTING
CREDITORS:

 

Print Name:
                                                  


 

By:
                                                                


Name:

Title:

 

Address
for Notice:

 

                                               


 

                                               


 


[SIGNATURE PAGE BLKL INTERCREDITOR
AGREEMENT]

 

NEW
CREDITORS:

 

Print Name:
                                                  


 

By:
                                                                


Name:

Title:

 

Address
for Notice: