EXHIBIT 10.07
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement"), dated as of October 25,
2000, is by and among AUTODESK, INC. (the "Subordinated Creditor"), AVATECH
SOLUTIONS, INC., AVATECH OF CALIFORNIA, INC., AVATECH OF CONNECTICUT, INC.,
AVATECH SOLUTIONS OF COLORADO, INC., AVATECH OF FLORIDA, INC., AVATECH OF
MARYLAND, INC., AVATECH OF MICHIGAN, INC., AVATECH OF NEBRASKA, INC., AVATECH OF
NEW JERSEY, INC., AVATECH OF NEW YORK, INC., AVATECH OF VIRGINIA, INC., and
TECHNICAL LEARNINGWARE COMPANY, INC. (collectively the "Companies" or
individually a "Company") and THE CIT GROUP/BUSINESS CREDIT, INC. (the
"Lender").
RECITALS:
A. The Lender has agreed to make loans to the Companies pursuant to the
terms of and as evidenced by that certain Financing Agreement, dated as October
25, 2000, as amended (if amended), by and between the Companies and the Lender
(hereinafter such Financing Agreement as amended, extended, renewed, modified
and/or replaced from time to time shall be referred to as the "Senior Financing
Agreement").
B. Because of the direct benefit to the Subordinated Creditor on account
of the loans made pursuant to the Senior Financing Agreement, the Subordinated
Creditor has agreed to enter into this Subordination Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 CERTAIN DEFINED TERMS. For the purposes hereof:
(a) "Lender" has the meaning set forth in the preamble hereof, and any
other person that is the holder of Senior Obligations at such time,
including, without limitation, any person holding Senior Obligations by
assignment or pledge.
(b) "Senior Obligations" means (i) the principal amount of, and
accrued interest (including, without limitation, any interest which accrues
after or would accrue but for the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency or reorganization of
any Company) payable on, the Senior Financing Agreement, (ii) all
liabilities and obligations, whenever arising, owing from any Company to
the Lender, or any affiliate of the Lender, arising under
any interest rate protection agreement (including xxxxxx, swaps, collars
and caps) now or hereafter extended by the Lender or any of its affiliates
to or for the benefit of any Company (the "Interest Rate Protection
Agreements") and (iii) all other indebtedness, obligations and liabilities
of the Companies to the Lender now existing or hereafter incurred or
created, under or with respect to the Senior Financing Agreement or the
Interest Rate Protection Agreements.
(c) "Subordinated Creditor" has the meaning set forth in the preamble
hereof.
(d) "Subordinated Debt Instrument" means the promissory note in the
amount of $2,960,645.77 issued by the Companies in favor of the
Subordinated Creditor, as such promissory note is modified, amended or
replaced from time to time.
(e) "Subordinated Obligations" means any and all obligations of the
Companies under the Subordinated Debt Instrument.
1.02 OTHER DEFINITIONAL PROVISIONS. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and section, subsection, schedule and exhibit references are to this
Agreement unless otherwise specified.
ARTICLE II
TERMS OF SUBORDINATION
2.01 SUBORDINATION.
(a) The Subordinated Creditor agrees, for itself and each future
holder of the Subordinated Obligations, that the Subordinated Obligations
are expressly subordinated and junior in right and time of payment (as
defined in subsection 2.01(b)) to all Senior Obligations.
(b) "Subordinated and junior in right and time of payment" shall mean
that:
(i) Unless and until the Senior Obligations shall have been paid
in full and satisfied, the Subordinated Creditor will not, without the
express prior written consent of the Lender, take, demand or receive,
and no Company will make, give or permit, directly or indirectly, by
set-off, redemption, purchase or in any other manner, any payment or
prepayment on or security or guaranty for the whole or any part of
Subordinated Obligations, and without the express prior written
consent of the Lender, the Subordinated Creditor will not accelerate
the payment of the
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Subordinated Obligations or accept any payments on account of any
excess cash flow provisions set forth in the Subordinated Debt
Instrument, or declare to be immediately due and payable, enforce or
take any action to enforce or collect the Subordinated Obligations or
any portion thereof or any security of guaranty therefor; PROVIDED,
HOWEVER, the Subordinated Creditor shall be entitled to receive
regularly scheduled current interest payments under the Subordinated
Debt Instrument pursuant to, and in accordance with, the terms thereof
so long as the Lender gives its written consent to the making of such
payments.
(ii) Until the Senior Obligations shall have been paid in full in
cash and satisfied, the Subordinated Creditor shall not accelerate,
declare to be immediately due and payable, enforce or take any action
to enforce or collect, the Subordinated Obligations or any portion
thereof or any security or guaranty therefor without the express prior
written consent of the Lender except with respect to payments
permitted by Section 2.01(b)(i) above.
(iii) Except for payments permitted by Section 2.01(b)(i) above or
Section 2.01(b)(iv) below, without the express written consent of the
Lender, no payment, prepayment or distribution or any kind of
character, whether in cash, property or securities (including without
limitation, proceeds of collateral for the Subordinated Obligations),
which, but for the subordination provisions contained herein, would
otherwise be payable or deliverable to the Subordinated Creditor upon
or in respect of the Subordinated Obligations shall be paid to the
Subordinated Creditor, and, the Subordinated Creditor shall not
receive or accept any such payment or distribution or any benefit
therefrom unless and until the Senior Obligations shall have been
fully paid and satisfied in cash.
(iv) Without limiting the generality of the foregoing provisions
of this Section 2.01, in the event of any liquidation, termination,
revocation or other winding-up of any Company, or in the event of any
receivership, insolvency, reorganization or bankruptcy proceedings,
assignment for the benefit of creditors or any proceeding by or
against any Company for any relief under any bankruptcy,
reorganization or insolvency law or laws, federal or state, or any
law, federal or state, relating to the relief of debtors, readjustment
of indebtedness, reorganization, composition or extension of
indebtedness, then, and in any such event, all Senior Obligations
shall first be paid in full in cash, before any payment or
distribution is made in respect of the Subordinated Obligations, and
any payment or distribution of any kind or character, whether in cash,
property or securities which, but for the subordination provisions
contained herein, would otherwise be payable or deliverable to the
Subordinated Creditor upon or in respect of the Subordinated
Obligations, shall instead be paid over or delivered to the Lender if
the
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Senior Obligations have not been fully paid and satisfied in cash, and
the Subordinated Creditor shall not receive any such payment or
distribution or any benefit therefrom unless and until the Senior
Obligations shall have been fully paid and satisfied in cash;
PROVIDED, HOWEVER, that the Subordinated Creditor may receive payments
permitted by Section 2.01(b)(i) above, and may retain securities that
are subordinated to at least the same extent as the Subordinated
Obligations to (A) the Senior Obligations and (B) any securities
issued in exchange for the Senior Obligations.
2.02 PAYMENTS RECEIVED BY SUBORDINATED CREDITOR. Should any payment or
distribution or security, or the proceeds of any thereof, be collected or
received by the Subordinated Creditor in respect of the Subordinated
Obligations, and such collection or receipt is not expressly permitted hereunder
(it being understood that the Subordinated Creditor is expressly permitted
hereunder to collect and receive payments and distributions made in respect of
the Subordinated Obligations in accordance with the provisions of Section
2.01(b)(i)), the Subordinated Creditor will forthwith turn over the same to the
Lender in the form received (except for endorsement or assignment by the
Subordinated Creditor when necessary) and, until so turned over, the same shall
be held in trust by the Subordinated Creditor as the property of the Lender.
2.03 SUBROGATION. After, but only after, the Lender shall have received, in
satisfaction of the Senior Obligations, indefeasible payment in full in cash of
the Senior Obligations, the Subordinated Creditor shall be subrogated to the
rights of the Lender to receive payments on or distributions of assets with
respect to the Senior Obligations.
2.04 NO COLLATERAL, SECURITY, GUARANTIES OR OFFSETS. Until the Lender shall
have received, in satisfaction of the Senior Obligations, payment in full in
cash of the Senior Obligations, the Subordinated Creditor shall not, directly or
indirectly, (i) take any additional collateral or security to secure the
repayment of the Subordinated Obligations, (ii) accept any guaranties to
guarantee the repayment of the Subordinated Obligations, or (iii) offset any
present and/or future amounts owing by the Subordinated Creditor to any Company
against any present and/or future amounts owing by any Company to the
Subordinated Creditor (including, without limitation, the Subordinated
Obligations).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 The Subordinated Creditor represents and warrants to the Lender that:
(a) POWER AND AUTHORITY; AUTHORIZATION; NO VIOLATION. The Subordinated
Creditor has full power, authority and legal right to execute, deliver and
perform this Agreement and, to the best of its knowledge, the execution of
this Agreement does not require any approval or consent of any holders of
any indebtedness or obligations of the Subordinated Creditor and will not
violate any provision of law, governmental regulation, order or decree or
any provision of any
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indenture, mortgage, contract or other agreement to which the Subordinated
Creditor is party or by which it or its assets are bound.
(b) CONSENTS. To the best of its knowledge, no consent, license,
approval or authorization of, or registration or declaration with, any
governmental instrumentality, domestic or foreign, is required in
connection with the execution, delivery and performance by the Subordinated
Creditor of this Agreement.
(c) BINDING OBLIGATION. This Agreement constitutes the legal, valid
and binding obligation of the Subordinated Creditor enforceable in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings
in equity or at law).
ARTICLE IV
MODIFICATION OF SENIOR
OBLIGATION; RELIANCE
4.01 The Subordinated Creditor consents, without the necessity of any
reservation of rights against it, and without notice to or further assent by it,
to the following: (a) any demand for payment of any Senior Obligation may be
continued, and the Senior Obligations or the liability of the Companies or any
other party upon or for any part thereof, or any collateral security or guaranty
therefor, or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, modified, accelerated, compromised,
waived, surrendered, or released and (b) the Senior Financing Agreement, the
Interest Rate Protection Agreements, or any document or instrument evidencing or
governing the terms of any other Senior Obligations or any collateral security
documents or guaranties or documents in connection with the Senior Financing
Agreement, the Interest Rate Protection Agreements or the Senior Obligations may
be amended, modified, supplemented or terminated, in whole or in part, as the
Lender and the Companies may agree from time to time, and any collateral
security at any time held by the Lender for payment under the Senior Financing
Agreement or the Interest Rate Protection Agreements or otherwise of the Senior
Obligations may be sold, exchanged, waived, surrendered or released, in each
case all without notice to or further assent by the Subordinated Creditor, which
will remain bound under this Agreement, and all without impairing, abridging,
releasing or affecting the subordination provided for herein, notwithstanding
any such renewal, extension, modification, acceleration, compromise, amendment,
supplement, termination, sale, exchange, waiver, surrender or release. The
Subordinated Creditor waives any and all notice of the creation, modification,
renewal, extension or accrual of any of the Senior Obligations or any of the
obligations under the Senior Financing Agreement or the Interest Rate Protection
Agreements and notice of or proof of reliance by the Lender upon this Agreement,
the Senior Financing Agreement, the Interest Rate Protection Agreements and the
Senior Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred in reliance upon this Agreement, and all
dealings between the Companies and the Lender shall be deemed to have been
consummated in reliance upon this
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Agreement, except that the foregoing provisions shall not constitute an
agreement to waive the notice provisions of Section 2.01(b)(i). The Subordinated
Creditor acknowledges and agrees that the Lender has relied upon the
subordination provided for herein in making certain credit facilities available
under the Senior Financing Agreement. The Subordinated Creditor waives notice of
or proof of reliance on this Agreement and protest, demand for payment and
notice of default.
ARTICLE V
MODIFICATION OF SUBORDINATED DEBT INSTRUMENT
5.01 Until the Senior Obligations have been paid in full, the Subordinated
Creditor agrees that it will not, without the prior written consent of the
Lender in each instance (i) amend, modify, waive or supplement the terms of the
Subordinated Debt Instrument in a manner that increases or otherwise makes more
onerous the obligations of the Companies thereunder with respect to the
Subordinated Obligations, (ii) accept any security interest, lien or mortgage on
any assets or property of any party to the Senior Financing Agreement as
security for the Subordinated Obligations (except for liens subordinate to the
liens in favor of the Lender) or (iii) accept any guaranty for purposes of
guaranteeing the repayment of the Subordinated Obligations.
ARTICLE VI
TRANSFER OF SUBORDINATED DEBT INSTRUMENT
6.01 Until the Senior Obligations have been paid in full, the Subordinated
Creditor agrees that it will not, without the prior written consent of the
Lender in each instance, (a) sell, assign or otherwise transfer, in whole or in
part, the Subordinated Debt Instrument or any interest in the foregoing to any
other person or entity (PROVIDED, HOWEVER, that the Subordinated Creditor may so
transfer the Subordinated Debt Instrument or any interest therein without the
prior written consent of the Lender if the transferee agrees in writing to be
bound by all of the terms of this Agreement as if it were a party to this
Agreement) or (b) create, incur or suffer to exist any security interest, lien,
charge or other encumbrance whatsoever upon the Subordinated Debt Instrument.
ARTICLE VII
MISCELLANEOUS
7.01 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise, and no delay
in exercising on the part of the Lender, from time to time, any right, power or
privilege under the Senior Obligations, or any right, power or privilege under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege under this Agreement preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies provided in this Agreement and in any
agreement relating to any
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of the Senior Obligations and all other agreements, instruments and documents
referred to in any of the foregoing are cumulative and shall not be exclusive of
any rights or remedies provided by law.
7.02 FURTHER ASSURANCES. The Subordinated Creditor agrees to execute and
deliver such further documents and to do such other acts and things as the
Lender may reasonably request in order fully to effect the purposes of this
Agreement.
7.03 NOTICES. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been fully given or made
when delivered by hand, or five days after having been given by certified mail,
return receipt requested or, in the case of telegraphic notice, when delivered
to the telegraph company, or in the case of telex notice, when sent, answerback
received, addressed as set forth on the signature pages of this Agreement by the
parties hereto or to such address or other address as may be hereafter notified
by the respective parties hereto.
7.04 GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Agreement and the rights
and obligations of the parties under this Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of North
Carolina applicable to contracts made and to be performed in such state, and
shall be binding upon and inure to the benefit of the Lender, the Subordinated
Creditor, the Companies and their respective successors, transferees and
assigns, except that the Subordinated Creditor may not assign or transfer any of
its obligations hereunder without the prior written consent of the Lender.
7.05 COUNTERPARTS. This Agreement may be executed by the parties hereto in
any number of separate counterparts all of which taken together shall constitute
one and the same instrument.
7.06 WAIVERS, AMENDMENTS, ETC.. The subordination provisions contained
herein are for the benefit of the Lender and its successors and assigns as
holders from time to time of Senior Obligations and may not be rescinded or
canceled or modified in any way, nor, unless otherwise expressly provided for
herein, may any provision of this Agreement be waived or changed without the
express prior written consent thereto of the Lender.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal as of the day and year first above written.
AUTODESK, INC.
ATTEST:
By /s/ [ILLEGIBLE] By /s/ [ILLEGIBLE]
------------------------- -----------------------
Title Assistant Secretary Title V.P. Finance
---------------------- --------------------
(Corporate Seal)
Address for Notices:
-------------------------
-------------------------
Attn:
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Fax No.
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The undersigned agrees to comply with the provisions of this Subordination
Agreement applicable to it and to make payment to the Subordinated Creditor only
in strict accordance with the terms hereof.
AVATECH SOLUTIONS, INC.
By: /s/ A. Xxxx Xxxxx, CFO
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Name: A. Xxxx Xxxxx
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Title: Chief Financial Officer
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AVATECH OF CONNECTICUT, INC.
By /s/ A. Xxxx Xxxxx
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Name: A. Xxxx Xxxxx
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Title Assistant Secretary
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AVATECH SOLUTIONS OF COLORADO, INC.
By /s/ A. Xxxx Xxxxx
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Name: A. Xxxx Xxxxx
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Title Assistant Secretary
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AVATECH OF FLORIDA, INC.
By /s/ A. Xxxx Xxxxx
----------------------------
Name: A. Xxxx Xxxxx
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Title Assistant Secretary
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AVATECH OF MARYLAND, INC.
By /s/ A. Xxxx Xxxxx
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Name: A. Xxxx Xxxxx
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Title Assistant Secretary
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AVATECH OF MICHIGAN, INC.
By /s/ A. Xxxx Xxxxx
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Name: A. Xxxx Xxxxx
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Title Assistant Secretary
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AVATECH OF NEBRASKA, INC.
By /s/ A. Xxxx Xxxxx
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Name: A. Xxxx Xxxxx
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Title Assistant Secretary
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AVATECH OF NEW JERSEY, INC.
By /s/ A. Xxxx Xxxxx
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Name: A. Xxxx Xxxxx
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Title Assistant Secretary
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AVATECH OF NEW YORK, INC.
By /s/ A. Xxxx Xxxxx
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Name: A. Xxxx Xxxxx
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Title Assistant Secretary
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AVATECH OF VIRGINIA, INC
By /s/ A. Xxxx Xxxxx
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Name: A. Xxxx Xxxxx
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Title Assistant Secretary
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TECHNICAL LEARNINGWARE
COMPANY, INC.
By /s/ A. Xxxx Xxxxx
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Name: A. Xxxx Xxxxx
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Title Assistant Secretary
-------------------------
Accepted and agreed to:
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ [ILLEGIBLE]
------------------------------
Name: [ILLEGIBLE]
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Title: ASSISTANT VICE PRESIDENT
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[AUTODESK(R) LOGO]
October 25, 2000
Avatech Solutions, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx X
Xxxxxx Xxxxx, XX 00000
The CIT Group/Business Credit, Inc.
Two First Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Gentlemen:
Autodesk, Inc. ("Autodesk") has been informed by Avatech Solutions, Inc.,
Avatech of California, Inc., Avatech of Connecticut, Inc., Avatech Solutions of
Colorado, Inc., Avatech of Florida, Inc., Avatech of Maryland, Inc., Avatech of
Michigan, Inc., Avatech of Nebraska, Inc., Avatech of New Jersey, Inc., Avatech
of New York, Inc., Avatech of Virginia, Inc., and Technical Learningware
Company, Inc. (collectively, the "Borrowers" or individually a "Borrower") that
The CIT Group/Business Credit, Inc. ("CIT") intends to make loans to the
Borrowers (the "CIT Loans") to be secured by a first priority lien and security
interest in all present and future Accounts, Documents of Title, General
Intangibles, Pledged Stock and Other Collateral (as each of such terms is
defined below) of each Borrower (hereinafter all such present and future
Accounts, Documents of Title, General Intangibles, Pledged Stock and Other
Collateral shall be referred to as the "CIT Collateral"). The security interest
of CIT in Accounts will include a security interest in all proceeds of Inventory
(as defined below) excluding any proceeds of Inventory generated on a
liquidation or foreclosure sale of the Inventory by Autodesk after the
occurrence of a default by the Borrowers in the performance of their obligations
to Autodesk.
Autodesk hereby releases its liens and security interests in the CIT Collateral
and agrees to execute any and all release documents (including all UCC-3 release
financing statements) upon the making of the initial CIT Loan. Autodesk also
agrees that it will not obtain any liens and/or security interests in the CIT
Collateral for so long as any of the CIT Loans remain outstanding or CIT is
obligated to make the CIT Loans.
Autodesk, Inc. 000 XxXxxxx Xxxxxxx main 415 507 5000
Xxx Xxxxxx, Xxxxxxxxxx
00000
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For purposes of the foregoing, the following terms shall have the following
meanings:
ACCOUNTS shall mean all of each Borrower's now existing and future:
(a) accounts (as defined in the UCC), and any and all other receivables
(whether or not specifically listed on schedules furnished to CIT),
including, without limitation, all accounts created by, or arising from,
all of each Borrower's sales, leases, rentals of goods or renditions of
services to its customers, including but not limited to, those accounts
arising under any of any Borrower's trade names or styles, or through any
of any Borrower's divisions; (b) any and all instruments, documents,
chattel paper (including electronic chattel paper) (all as defined in the
UCC); (c) unpaid seller's or lessor's rights (including rescission,
replevin, reclamation, repossession and stoppage in transit) relating to
the foregoing or arising therefrom; (d) rights to any goods represented by
any of the foregoing, including rights to returned, reclaimed or
repossessed goods; (e) reserves and credit balances arising in connection
with or pursuant hereto; (f) guarantees, supporting obligations, payment
intangibles and letter of credit rights (all as defined in the UCC); (g)
insurance policies or rights relating to any of the foregoing; (h) general
intangibles pertaining to any and all of the foregoing (including all
rights to payment, including those arising in connection with bank and
non-bank credit cards), and including books and records and any electronic
media and software thereto; (i) notes, deposits or property of account
debtors securing the obligations of any such account debtors to any
Borrower; and (j) cash and non-cash proceeds (as defined in the UCC) of any
and all of the foregoing. Notwithstanding the foregoing, the term
"Accounts" shall exclude any proceeds of Inventory generated on liquidation
or foreclosure sale of the Inventory by Autodesk after the occurrence of a
default by any Borrower in the performance of its obligations to Autodesk.
COPYRIGHTS shall mean all of each Borrower's present and hereafter
acquired copyrights, copyright registrations, recordings, applications,
designs, styles, licenses, marks, prints and labels bearing any of the
foregoing, goodwill, any and all general intangibles, intellectual property
and rights pertaining thereto, and all cash and non-cash proceeds thereof.
DOCUMENTS OF TITLE shall mean all of each Borrower's present and
future documents (as defined in the UCC), and any and all warehouse
receipts, bills of lading, shipping documents, chattel paper, instruments
and similar documents, all whether negotiable or not and all goods and
Inventory relating thereto and all cash and non-cash proceeds of the
foregoing.
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GENERAL INTANGIBLES shall mean all of each Borrower's present and
hereafter acquired general intangibles (as defined in the UCC), and shall
include, without limitation, all present and future right, title and
interest in and to: (a) all Trademarks, tradenames, corporate names,
business names, logos and any other designs or sources of business
identities, (b) Patents, together with any improvements on said Patents,
utility models, industrial models, and designs, (c) Copyrights, (d) trade
secrets, (e) licenses, permits and franchises, (f) all applications with
respect to the foregoing, (g) all right, title and interest in and to any
and all extensions and renewals, (h) goodwill with respect to any of the
foregoing, (i) any other forms of similar intellectual property, (j) all
customer lists, contract rights, distribution agreements, supply
agreements, blueprints, indemnification rights and tax refunds, together
with all monies and claims for monies now or hereafter due and payable in
connection with any of the foregoing or otherwise, and all cash and
non-cash proceeds thereof, including, without limitation, the proceeds or
royalties of any licensing agreements between any Borrower and any licensee
of any of any Borrower's General Intangibles.
INVENTORY shall mean all of each Borrower's present and hereafter
acquired inventory (as defined in the UCC) and including, without
limitation, all merchandise, inventory and goods, and all additions,
substitutions and replacements thereof, wherever located, together with all
goods and materials used or usable in manufacturing, processing, packaging
or shipping same in all stages of production from raw materials through
work-in-process to finished goods and all proceeds thereof of whatever
sort.
OTHER COLLATERAL shall mean all of each Borrower now owned and
hereafter acquired lockbox, blocked account and any other deposit accounts
maintained with any bank or financial institutions into which the proceeds
of CIT Collateral are or may be deposited; all cash and other monies and
property in the possession or control of CIT; all books, records, ledger
cards, disks and related data processing software at any time evidencing or
containing information relating to any of the CIT Collateral described
herein or otherwise necessary or helpful in the collection thereof or
realization thereon; and all cash and non-cash proceeds of the foregoing.
PATENTS shall mean all of each Borrower's present and hereafter
acquired patents, patent applications, registrations, any reissues or
renewals thereof, licenses, any inventions and improvements claimed
thereunder, and all general intangible, intellectual property and patent
rights with respect thereto of each Borrower, and all income, royalties,
cash and non-cash proceeds thereof.
PLEDGED STOCK shall mean all present and future capital stock of each
Borrower and each of its subsidiaries.
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TRADEMARKS shall mean all of each Borrower's present and hereafter
acquired trademarks, trademark registrations, recordings, applications,
tradenames, trade styles, service marks, prints and labels (on which any of
the foregoing may appear), licenses, reissues, renewals, and any other
intellectual property and trademark rights pertaining to any of the
foregoing, together with the goodwill associated therewith, and all cash
and non-cash proceeds thereof.
UCC shall mean the Uniform Commercial Code as in effect from time to
time in the state of North Carolina.
The agreements of Autodesk contained herein shall (i) be enforceable by each
Borrower or CIT (or any successor to CIT or any person that acquires the CIT
Loans), (ii) remain in full force and effect until the CIT Loans are paid in
full and CIT is no longer obligated to make CIT Loans and (iii) not be affected
by any changes to the terms regarding the CIT Loans or any documentation with
respect thereto.
The validity, interpretation and enforcement of this agreement shall be governed
by the laws of the state of North Carolina.
AUTODESK, INC.
By /s/ [ILLEGIBLE]
---------------------
Title V.P. Finance
------------------
Agreed to and accepted by the undersigned as of the 25th day of
October, 2000.
AVATECH SOLUTIONS, INC.
By /s/ A. Xxxx Xxxxx, CFO
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Title Chief Financial Officer
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AVATECH OF CALIFORNIA, INC.
By /s/ A. Xxxx Xxxxx
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Title Assistant Secretary
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AVATECH OF CONNECTICUT, INC.
By /s/ A. Xxxx Xxxxx
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Title Assistant Secretary
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AVATECH SOLUTIONS OF COLORADO, INC.
By /s/ A. Xxxx Xxxxx
----------------------------
Title Assistant Secretary
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AVATECH OF FLORIDA, INC.
By /s/ A. Xxxx Xxxxx
----------------------------
Title Assistant Secretary
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AVATECH OF MARYLAND, INC.
By /s/ A. Xxxx Xxxxx
----------------------------
Title Assistant Secretary
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AVATECH OF MICHIGAN, INC.
By /s/ A. Xxxx Xxxxx
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Title Assistant Secretary
-------------------------
AVATECH OF NEBRASKA, INC.
By /s/ A. Xxxx Xxxxx
----------------------------
Title Assistant Secretary
-------------------------
AVATECH OF NEW JERSEY, INC.
By /s/ A. Xxxx Xxxxx
----------------------------
Title Assistant Secretary
-------------------------
Page 6
AVATECH OF NEW YORK, INC.
By /s/ A. Xxxx Xxxxx
----------------------------
Title Assistant Secretary
-------------------------
AVATECH OF VIRGINIA, INC.
By /s/ A. Xxxx Xxxxx
----------------------------
Title Assistant Secretary
-------------------------
TECHNICAL LEARNINGWARE COMPANY, INC.
By /s/ A. Xxxx Xxxxx
----------------------------
Title Assistant Secretary
-------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
By /s/ [ILLEGIBLE]
----------------------------
Title ASSISTANT VICE PRESIDENT
-------------------------
