EXHIBIT 10.8
SUBORDINATION AND TERMINATION AGREEMENT
This SUBORDINATION AND TERMINATION AGREEMENT ("Agreement") is being entered into
as of October 9, 2001, between SILICON VALLEY BANK, a California banking
corporation ("SVB"), and DIGITAL CREATIVE DEVELOPMENT CORPORATION ("DCDC"), a
Utah corporation.
RECITALS
A. IMSI as debtor and borrower ("Debtor") is indebted to SVB pursuant to
a Loan and Security Agreement dated November 3, 1998 ("SVB Loan
Agreement").
The obligations under the SVB Loan Agreement ("SVB Obligations") are
secured by all assets of IMSI described in said agreement
("Collateral").
In addition the SVB Obligations are secured by the terms of the
Intellectual Property Security Agreement ("IMSI IP Security
Agreement") executed by IMSI dated November 3, 1999 and by the assets
described therein ("IP Collateral").
In addition the SVB Obligations are secured by the terms of a Pledge
Agreement ("Pledge Agreement") executed by IMSI encumbering all
shares of stock in XxxXxxxx.xxx, Inc. ("ArtToday") which are owned by
IMSI.
B. IMSI is obligated to Union Bank of California ("UBOC") pursuant to
the terms of the First Amended and Restated Loan Agreement dated as
of April 23, 1999, between IMSI and UBOC, including any promissory
notes issued thereto and all documents executed in connection
therewith, as amended and modified (collectively, "UBOC Loan
Agreement").
The obligations under the UBOC Loan Agreement ("UBOC Obligations")
are secured by the Collateral. In addition the UBOC Obligations are
secured by the terms of the Intellectual Property Security Agreement
executed by IMSI dated November 3, 1999 and by the IP Collateral.
In addition the UBOC Obligations are secured by the terms of the
Pledge Agreement encumbering all shares of stock in ArtToday which
are owned by Borrower.
C. UBOC and SVB have entered into an Intercreditor Agreement dated as of
November 3, 1998 ("Intercreditor Agreement") which among other things
provides that UBOC's lien on the assets of Borrower shall be senior
to SVB's lien.
D. The SVB Obligations and the UBOC Obligations are guarantied pursuant
to the terms of a Limited Guaranty executed by ArtToday ("ArtToday
Guaranty").
E. The Obligations of ArtToday under the ArtToday Guaranty are secured
by all of the assets of ArtToday pursuant to the terms of:
(i) a Security Agreement (All Personal Property Assets) ("ArtToday
Security Agreement"); and
(ii) an Intellectual Property Security Agreement executed by
ArtToday ("ArtToday IP Security Agreement").
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F. DCDC intends to merge with a subsidiary of IMSI ("Merger Subsidiary)
in such a manner that Merger Subsidiary acquires all assets and
obligations of DCDC (the "Merger Transaction"). Prior to such merger
DCDC will purchase the UBOC Loan Agreement. As a result of the Merger
Transaction, Merger Subsidiary shall acquire the UBOC Loan Agreement
and all liens related thereto.
G. Concurrent herewith IMSI and Bank and DCDC and other parties are
entering into a Restructure Agreement of even date which will
restructure and reduce the obligations owed by IMSI under the SVB
Loan Agreement.
H. Concurrent herewith IMSI is executing as maker a promissory note of
even date herewith ("Revised Promissory Note") in the original
principal sum of $1,200,000 which shall reflect the reduction of the
monetary obligations of IMSI under the SVB Loan Agreement.
NOW, THEREFORE, in consideration of the premises and for other good valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, SVB
and DCDC ("Creditor") agree as follows:
No Third Party Beneficiaries. All understandings, agreements, representations
and warranties contained herein are solely for the benefit of the parties hereto
and there are no other parties (including, without limitation, IMSI) who are
intended to be benefited in any way by this Agreement.
Definitions.
The term "Obligations" is used in this Agreement in its broadest and most
comprehensive sense and shall mean all present and future indebtedness of Debtor
which may be, from time to time, directly or indirectly, incurred by Debtor,
including without limitation, any negotiable instruments evidencing the same,
and all guaranties, debts, demands, monies, indebtedness, liabilities and
obligations owed (or to become owing), including interest, principal, costs and
other charges and all claims, rights, causes of action, judgments, decrees,
remedies, security interests, or other obligations of any kind whatsoever, and
however arising whether voluntary, involuntary, absolute, contingent or by
operation of law.
For purposes of this Agreement, "Creditor Obligations" shall mean all
Obligations owing at any time by Debtor to Creditor, including, without
limitation, obligations owed under the UBOC Loan Agreement, and all interest
accruing during a bankruptcy proceeding with respect to Debtor, notwithstanding
any law to the contrary.
For purposes of this Agreement, "Senior Obligations" shall mean all Obligations
owing at any time by Debtor to SVB including without limitation all obligations
under the SVB Loan Agreement and the Restructure Agreement and including,
without limitation, interest accruing during a bankruptcy proceeding with
respect to Debtor, notwithstanding any law to the contrary.
Subordination.
Creditor agrees that payment of any Creditor Obligations and any guaranty
thereof is and shall be expressly subordinate and junior in right of payment to
the prior indefeasible payment in full in cash or cash equivalents of all Senior
Obligations. In furtherance of the foregoing, Debtor shall not make, and
Creditor shall not accept, receive or retain from Debtor, any direct or indirect
payment (in cash, property, or securities or by set-off or otherwise) upon or in
respect of the Creditor Obligations, or in respect of any acceleration, demand,
suit for collection, action or enforcement of the Creditor Obligations or in
respect of any prepayment, redemption, retirement, purchase or other acquisition
of the Creditor Obligations, until all the Senior Obligations have been
indefeasibly paid in full in cash or cash equivalents. For the purpose hereof, a
credit bid at a foreclosure sale by Bank or its successor or assign shall be
deemed a "cash equivalent" in the amount of the credit bid.
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Any and all liens on assets of Debtor which secure the Senior Obligations,
including, without limitation, on the IP Collateral and Collateral, shall at all
times be and remain senior to any and all liens on such assets which secure the
Creditor Obligations regardless of the time or priority of any filings to
perfect such liens. All proceeds received by Creditor on such liens will be
disposed of as provided above.
Creditor's rights to collect from any guarantor ("Guarantor") under any guaranty
of any Creditor Obligations shall be junior to all rights which SVB may have to
collect from said Guarantor under any guaranty of the Senior Obligations.
Any and all liens on assets of any Guarantor which secure a guaranty of the
Senior Obligations shall at all times be and remain senior to any and all liens
on such assets which secure a guaranty of the Creditor Obligations regardless of
the time or priority of any filings to perfect such liens.
No Enforcement. Unless and until all the Senior Obligations shall be
indefeasibly paid in full in cash, Creditor covenants and agrees that during the
Standstill Period (defined below) it shall not, directly or indirectly: (i)
exercise or enforce any right of acceleration, demand or set-off against Debtor
or the assets or property of Debtor; (ii) make any claim or commence or initiate
any action, lawsuit, case or proceeding against Debtor or join together or with
any creditor in any action, lawsuit, case or proceeding against Debtor (other
than filing any claims in Debtor's bankruptcy); (iii) ask for, demand, take,
accept, receive or take any action to obtain, any security interest or lien on
the assets or property of Debtor, except as specified below, or exercise any
right or remedy with respect to Debtor or the assets or property of Debtor; (iv)
contact any account debtors of Debtor or otherwise seek payment from any obligor
an any collateral held by Creditor to secure any Creditor Obligations; (v)
exercise any right of foreclosure or any right or remedy with respect to any
lien (consensual or otherwise) held on any asset of Debtor including; (vi)
enforce any rights under any guaranty of the Creditor Obligations or any
collateral for such guaranty; or (vii) take any other action that interferes
with, is prejudice to or inconsistent with SVB's rights and senior position with
respect to Debtor or the assets or property of Debtor including, without
limitation, that Creditor shall not take any action that will impede, interfere
with, restrict, or restrain the exercise by SVB of its rights and remedies. The
"Standstill Period" shall be 180 days from the date that Creditor provides
written notice to SVB that an event of default with respect to all or any part
of the Creditor Obligations has occurred; provided, however, that the Standstill
Period will be extended beyond 180 days to the extent (and for the duration of
the period) that (A) SVB is taking action to enforce its rights or (B) SVB is
stayed from taking action to enforce its rights by operation of law or court
order.
Representation Warranties and Covenants. Creditor represents, covenants and
agrees that it (a) is the owner and holder of a portion of the Creditor
Obligations and that it has not sold or assigned any interest therein, (b) does
not have a security interest or lien on the property or the assets of Debtor
except the liens which secure the UBOC Loan Agreement, (c) will not, without
SVB's prior written consent, sell, assign or dispose of Creditor Obligations or
any interest therein, (d) will not, without SVB's prior written consent, grant,
create, or incur any security interest, lien, charge or other encumbrance
whatsoever upon the Creditor Obligations and (e) will not, without SVB's prior
written consent, change the payment terms as regards any of the Creditor
Obligations. Creditor agrees that if any Creditor Obligations constitute
promissory notes, such notes shall have a legend printed on their faces stating
that payments and enforcement of the said notes are subordinated to the Senior
Obligations pursuant to the terms of this Agreement.
Assignment. In furtherance of the foregoing effective upon a bankruptcy or
liquidation of Debtor, Creditor assigns to SVB all of its rights in any claims
it may then have against Debtor or its properties arising out of or relating to
the Creditor Obligations ("Creditor Claims"); and pursuant hereto, in the event
of any assignment by Debtor for the benefit of Debtor's creditors in any
bankruptcy, receivership or other insolvency proceeding relative to Debtor or
its properties, SVB shall have the right to act as Creditor's attorney-in-fact
for the purposes specified herein. Creditor hereby irrevocably appoints SVB, and
each of its partners, its true and lawful attorney, and grants to SVB a power of
attorney with full power of substitution in the name of Creditor or in the name
of SVB (which power is coupled with an interest and is irrevocable), for the use
and benefit of SVB, without notice to Creditor or its successors or
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assigns, at SVB's option, to: (a) enforce the Creditor Claims either in SVB's
own name or in the name of Creditor, by proof of debt, proof of claim, suit or
otherwise; (b) collect any assets of Debtor distributed, divided or applied by
way of dividend or payment, or any securities or the proceeds of any realization
upon the same in respect of the Creditor Claims, and apply same to the Senior
Obligations until all of such have been indefeasibly paid in full in cash or
cash equivalents; and (c) vote and exercise any and all rights in respect of the
Creditor Claims including without limitation, to accept or reject any plan of
partial or complete liquidation, reorganization or arrangement. Any Assignee for
the benefit of creditors, Bankruptcy Trustee or Receiver for Debtor, or any
person in charge of Debtor, is hereby directed to pay to Bank the full amount of
the Senior Obligations before making any payment to Creditor.
Trust. Any payments by Debtor or any Guarantor or any distribution of assets of
Debtor or any Guarantor of any kind or character, whether in cash, property or
securities or by set-off or otherwise, which are not permitted to be received or
retained by Creditor hereunder or are received by Creditor during any
reorganization or insolvency proceeding prior to payment of the Senior
Obligations in full shall be held by Creditor in trust for, and turned over to,
SVB for application to the Senior Obligations until all such Senior Obligations
shall have been indefeasibly paid in full in cash or cash equivalents.
Effectiveness.
This Agreement shall become effective, immediately and automatically upon the
effectiveness of the Revised Promissory Note as set forth in Section 11 of the
Restructure Agreement.
The subordinations and agreements set forth herein shall remain in full force
and effect until Debtor has paid in full in cash or cash equivalents the Senior
Obligations. The rights and obligations of Creditor and SVB hereunder shall not
be affected by any act or failure to act by Debtor (regardless of any knowledge
Bank may have thereof) or the bankruptcy or insolvency of Debtor and shall be
effective regardless of whether either SVB or Creditor in the future seeks to
rescind, amend, terminate or reform by litigation or otherwise their respective
agreements with Debtor.
Termination of Intercreditor Agreement.
Effective immediately and automatically upon the Revised Promissory Note
becoming effective as set forth in Section 11 of the Restructure Agreement, the
Intercreditor Agreement shall be deemed terminated and of no further force or
effect.
If thereafter for any reason the obligations under the SVB Loan Agreement as
reinstated, the Intercreditor Agreement shall continue to be terminated and
shall not revive or be reinstated.
No Attachment. Except as hereafter provided, Creditor further agrees that in
case Creditor should take or receive any additional security interest in, or
additional lien by way of attachment, execution, or otherwise on any property,
real or personal, or should take or join in any other measure or advantage
contrary to this Agreement, at any time prior to the payment in full of all of
the Senior Obligations, SVB shall be entitled to have the same vacated,
dissolved and set aside by such proceedings at law, or otherwise, as SVB may
deem proper, and this Agreement shall be and constitutes full and sufficient
grounds therefor and shall entitle SVB to intervene and become a party to any
proceedings at law, or otherwise, initiated by SVB or by Creditor or by any
other party, in or by which SVB may deem it proper to protect SVB's interests
hereunder. Creditor agrees that if it violates this Agreement, it shall be
liable to SVB for all losses and damages sustained by SVB by reason of such
breach, including SVB's reasonable attorneys' fees and costs in any such legal
action.
No Information. Creditor agrees that SVB shall have no duty to advise Creditor
of any information known to SVB regarding the financial condition of Debtor or
any circumstance relating to the Senior Obligations. Creditor assumes sole,
continuing responsibility for obtaining such information from sources other than
SVB.
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Collection of Senior Obligations. Creditor agrees that SVB shall have absolute
power and discretion, without notice to Creditor, to deal in any manner with the
Senior Obligations and any security therefor including (without limitation)
release, surrender, extension or renewal, acceleration, compromise or
substitution. Creditor hereby waives and agrees not to assert against SVB any
and all rights which a guarantor or surety could exercise. (However, nothing
herein shall constitute Creditor a guarantor or surety.) Creditor hereby waives
the right, if any, to require that SVB marshal or otherwise require SVB to
proceed to dispose of or foreclose upon collateral in any matter or order.
Creditor further waives any defense arising by reason of any claim or defense
based upon an election of remedies by SVB which in any manner impairs, affects,
reduces, releases, destroys and/or extinguishes Creditor's subrogation rights,
rights to proceed against the Debtor for reimbursement, and/or any other rights
of Creditor.
Further Assurances. Creditor agrees to execute and deliver such additional
instruments and documents and take such additional actions as SVB may reasonably
request in order to carry out and evidence the terms of this Agreement.
Choice of Law. This Agreement shall be governed by and construed under the laws
of the State of California and shall be binding and inure to the benefit of the
successors and assigns of the parties hereto. In case any provision hereof shall
be determined to be unenforceable, the remaining provisions hereof shall remain
valid and enforceable.
Notices. All notices hereunder shall be in writing to the addresses set forth
below and shall be deemed to be effective one day after sending by reputable
overnight courier service or three days after mailing by certified or registered
mail, postage prepaid, return receipt requested.
SVB: WITH NOTICE TO:
Silicon Valley Bank Xxxxx X. Xxxxx
000 Xxxxx Xxxxxx, Xxxxx 000 Xxxxxx, Xxxxxx, Xxxxx & May
Xxx Xxxxxxxxx, XX 00000 Two Embarcadero Center, 20th Floor
Attn: Xxxxx Xxxxxxxx XxXxx Xxx Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000 Facsimile: (000) 000-0000
DCDC: WITH NOTICE TO:
Xxxxxx Xxxx, President & CEO Xxxx Xxxxxx, Esq.
Digital Creative Development Corporation Xxxxxx & Eilen, LLP
00 Xxxxxx Xxxxx Xxxxx, 0xx Xxxxx 00 Xxxxxxx Xxxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Integration. This Agreement constitutes the final and complete agreement of the
parties hereto and shall not be amended or modified except in writing signed by
SVB and Creditor. This Agreement may be executed in any number of counterparts,
each of which when signed will be deemed to be an original and all such
counterparts together shall be deemed to be an original.
Revivor. If, after payment of the Senior Debt, the Debtor thereafter becomes
liable to Bank on account of the Senior Debt, or any payment made on the Senior
Debt shall for any reason be returned by SVB, this Agreement shall thereupon in
all respects become effective with respect to such subsequent or reinstated
Senior Debt, without the necessity of any further act or agreement between SVB
and Creditor.
Attorneys' Fees. In the event of any litigation between the parties based upon,
arising out of, or in any way relating to this Agreement, the prevailing party
shall be entitled to recover all of its costs and expenses (including, without
limitation, reasonable attorneys' fees) from the non-prevailing party.
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In witness whereof, the parties hereto have executed this Subordination and
Termination Agreement as of the date first written above.
BANK: CREDITORS:
SILICON VALLEY BANK, DIGITAL CREATIVE DEVELOPMENT CORPORATION,
a California banking corporation a Utah corporation
By: /s/ XXXXX XXXXXXXX XxXXX By: /s/ XXXXXX XXXX III
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Name: XXXXXX XXXX III
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Title: President and CEO
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By:
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Its:
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By:
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Its:
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