EXHIBIT 10.18
SECOND AMENDED AND RESTATED INTERCREDITOR AGREEMENT
This SECOND AMENDED AND RESTATED INTERCREDITOR AGREEMENT ("Agreement") is
made as of April 28, 2004, by and among HUNTINGDON CORPORATION, a Florida
corporation, in its capacity as the holder of the Additional and Supplemental
Debt (as defined below), (in such capacity, together with its assigns, the
"Additional and Supplemental Creditor"), HUNTINGDON CORPORATION, a Florida
corporation, in its capacity as the holder of the Advance Debt (as defined
below) (in such capacity, together with its assigns, the "Advance Creditor") and
XXXXXX XXXXXXX, in his capacity as the holder of the Xxxxxxx Debt (as defined
below) (in such capacity, together with his assigns, "Xxxxxxx"), and X. XXXXXXX
IRREVOCABLE ABC TRUST, in its capacity as holder of the Trust Debt (as defined
below), (in such capacity, together with its assigns, "Trust").
BACKGROUND
A. MEDIABAY, INC., a Florida corporation (the "Company") has issued to
Huntingdon Corporation a certain Senior Convertible Promissory Note due
September 30, 2007, in the amount of $800,000 (as it may be, from time to time,
amended, supplemented, extended, renewed, refinanced, restated, or replaced in
whole, or in part, the "Advance Debt Note"), to evidence certain indebtedness
owing from the Company to Huntingdon Corporation with respect to advances made
to the Company by Huntingdon Corporation in December 2000, and February 2001
(such indebtedness owing under the Advance Debt Note, the "Advance Debt").
B. Pursuant to a certain Amended and Restated Security Agreement dated the
date hereof (as it may be, from time to time, amended, supplemented, extended,
renewed, refinanced, restated, or replaced in whole, or in part, the "Huntingdon
Security Agreement"), by and among the Company and certain of the subsidiaries
of the Company (collectively, "Grantors"), and Huntingdon Corporation, the
Grantors have granted to Huntingdon Corporation, in its capacity as Advance
Creditor, a security interest in all of the assets of the Grantors, as set forth
in the Huntingdon Security Agreement (such security interest, the "Advance
Creditor Security Interest").
C. Pursuant to a Loan Agreement dated April 30, 0000, Xxxxxxxxxx
Corporation lent the Company the additional principal amount of $2,500,000
("Additional Financing Loans"). The Additional Financing Loans are evidenced by
a Senior Secured Promissory Note in the principal amount of $2,500,000 dated May
14, 2001 (as the same may be, from time to time, amended, supplemented,
extended, renewed, refinanced, restated, or replaced, in whole or in part, the
"Additional Debt Note"). All indebtedness owing under any and all of the
Additional Debt Note shall be referred to collectively, as the "Additional and
Supplemental Debt."
D. Pursuant to the Huntingdon Security Agreement, the Grantors have
granted to Huntingdon Corporation, in its capacity as Additional and
Supplemental Creditor, a security interest in all of the assets of the Grantors,
as set forth in the Huntingdon Security Agreement (such security interest, the
"Additional and Supplemental Creditor Security Interest").
E. The Company issued to Xxxxxxx a certain Senior Convertible Promissory
Note due September 30, 2007, dated as of December 31, 1998, in the amount of
$1,984,250 (as it may be from time to time amended, supplemented, extended,
renewed, refinanced, restated or replaced in whole or in part, the "Xxxxxxx
Note"), to evidence indebtedness of the Company owing to Xxxxxxx (such
indebtedness owing under the Xxxxxxx Note, the "Xxxxxxx Debt").
F. Pursuant to a certain Amended and Restated Security Agreement dated the
date hereof (as it may be from time to time amended, supplemented, extended,
renewed, refinanced, restated or replaced in whole or in part, the "Xxxxxxx
Security Agreement"), by and among the Grantors and Xxxxxxx, the Grantors have
granted to Xxxxxxx a security interest in all of the assets of the Grantors, as
set forth in the Xxxxxxx Security Agreement (such security interest, the
"Xxxxxxx Security Interest").
G. The Company issued to the Trust a certain Convertible Series
Subordinated Promissory Note in the principal amount of $500,000 (as it may be,
from time to time, amended, supplemented, extended, renewed, refinanced,
restated, or replaced in whole, or in part, the "Trust Note"), to evidence
certain indebtedness owing from the Company to the Trust (such indebtedness
owing under the Trust Note, the "Trust Debt").
H. Pursuant to a certain Security Agreement dated the date hereof (as it
may be, from time to time, amended, supplemented, extended, renewed, refinanced,
restated, or replaced in whole, or in part, the "Trust Security agreement"), by
and among Grantors and the Trust, the Grantors have granted to the Trust a
security interest in all of the assets of the Grantors, as set forth in the
Trust Security Agreement (such security interest, the "Trust Security
Interest"). The assets securing repayment of the Advance Debt, the Additional
and Supplemental Debt, the Trust Debt, and the Xxxxxxx Debt are referred to
herein as the "Common Collateral."
I. The Advance Creditor, the Additional and Supplemental Creditor and
Xxxxxxx have made certain agreements regarding their respective rights in
relation to the Company and the Common Collateral, which agreements were set
forth in a certain Amended and Restated Intercreditor Agreement dated October 3,
2002 ("Existing Intercreditor Agreement"), and the parties desire to amend and
restate, in its entirety, the Existing Intercreditor Agreement as set forth
herein;
NOW THEREFORE, with the foregoing Background incorporated by reference,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and intending to be legally bound, the parties agree as
follows:
1. Priority of Security Interests. The parties hereto agree that,
notwithstanding anything to the contrary contained in the Advance Debt Note, any
Additional Debt Note, the Xxxxxxx Note, the Trust Note, or in the Huntingdon
Security Agreement, the Xxxxxxx Security Agreement, or Trust Security Agreement:
a. With respect to the Common Collateral, the Advance Creditor
Security Interest, the Xxxxxxx Security Interest, and the Trust Security
Interest shall be junior, subject and subordinate to the Additional and
Supplemental Creditor Security Interest for so long as any Additional and
Supplemental Debt remains outstanding and unsatisfied.
b. With respect to the Common Collateral, the Xxxxxxx Security
Interest and Trust Security Interest shall be further junior, subject and
subordinate to the Advance Creditor Security Interest for so long as any Advance
Debt remains outstanding and unsatisfied.
c. The Xxxxxxx Security Interest and Trust Security Interest shall
per pari passu.
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The priority of security interests in the Common Collateral set forth
above shall apply and control irrespective of (i) any statements to the contrary
in any agreement or other document executed and delivered by any party hereto or
any affiliate thereof, (ii) the time, order, or method of attachment or
perfection of security interests, (iii) the time or order of recording of
mortgage or filings of financing statements or any other recordings of filings,
or (iv) the giving of, or the failure to give, notice of the acquisition or
expected acquisition of purchase money or other security interests.
Notwithstanding the foregoing, nothing in this Agreement shall be interpreted or
construed to affect in any way any security interest granted by any of the
Grantors (or any of such Grantor's subsidiaries or affiliates) to any of the
Advance Creditor, the Additional and Supplemental Creditor, Xxxxxxx, or the
Trust in any assets of the such Grantor (or any of such Grantor's subsidiaries
or affiliates) other than the Common Collateral.
2. Preservation and Reservation of Rights. The parties hereto agree that,
subject to the express agreements contained herein with respect to subordination
and priority, each party hereto shall retain all of its rights in connection
with the respective indebtedness owed to it by the Company pursuant to its
respective notes and security documents, including rights to accelerate such
indebtedness and to seek enforcement of its remedies against the Company with
respect to such indebtedness, that are available to such party under its
respective notes and security documents or otherwise at law or equity.
3. Continuing Validity of Agreement. The parties hereto agree that, the
agreements set forth in this Agreement, and the rights of the Additional and
Supplemental Creditor as against the Advance Creditor, Xxxxxxx, and the Trust,
and of the Advance Creditor as against Xxxxxxx and the Trust shall remain in
full force and in effect without regard to, and shall not be impaired by any act
of any party (including without limitation the Company and any of the parties
hereto) or any event whatsoever, including without limitation, any amendment,
modification, restatement, refinancing or waiver of, or addition or supplement
to or deletion from, or compromise, release or consent or other action in
respect of any of the terms of the Advance Debt, the Additional and Supplemental
Debt, the Xxxxxxx Debt, or the Trust Debt, any exercise or non-exercise of any
party hereto of any of its rights in connection with the respective indebtedness
owed to it by the Company or the security interests granted to it by any of the
Grantors to secure such indebtedness, any failure by any party to perfect its
security interest in or actions taken by such party with respect to or release
by such party of its security interest in any collateral granted to such party
by any of the Grantors, any absence or inadequacy of any notice to, or knowledge
by, any party hereto of any matter (including the foregoing matters), or any
other circumstance which might otherwise constitute a defense available to or a
discharge of the Company, any of the other Grantors or any of the parties
hereto. Each of the Advance Creditor, Xxxxxxx, and the Trust waives any and all
notices of the acceptance of the provisions of this Agreement or of the,
renewal, extension or accrual, now or at any time in the future, of any
Additional and Supplemental Debt or Advance Debt, as applicable.
4. No Effect on Obligations of Company/Grantors, Company Not a Third Party
Beneficiary. Nothing contained in this Agreement shall impair, as between the
Company, and/or any of the other Grantors, and any of the Advance Creditor, the
Additional and Supplemental Creditor, Xxxxxxx, or the Trust, as applicable, (i)
the obligation of the Company to pay to, with respect to any of the Advance
Debt, the Additional and Supplemental Debt, the Trust Debt, or the Xxxxxxx Debt,
as applicable, the principal thereof and interest thereon as and when the same
shall become due and payable in accordance with the terms of the Advance Debt
Note, the Additional Debt Note, the Trust Note, or the Xxxxxxx Note, as
applicable (subject in any event, to any subordination or intercreditor
provisions contained or referenced therein in favor of any senior lender), (ii)
the obligation of the Company and each other Grantor to comply with each and
every provision of the Advance Debt Note, the Additional Debt Note, the Trust
Note, or the Xxxxxxx Note, as applicable, or any of the Advance Debt, the
Additional and Supplemental Debt, the Trust Debt, or the Xxxxxxx Debt, as
applicable, or the Huntingdon Security Agreement, the Trust Security Agreement,
or the Xxxxxxx Security Agreement, or (iii) the ability of the Advance Creditor,
the Additional and Supplemental Creditor, the Trust, or Xxxxxxx, as applicable,
to exercise all rights, powers, and remedies otherwise permitted by applicable
law or under this Agreement, all subject to the rights of the holders of the
Additional and Supplemental Creditor Debt, or the Advance Creditor Debt, as
applicable, hereunder including rights to receive cash, securities or other
property otherwise payable or deliverable to the holders of the Advance Creditor
Debt, the Trust Debt, or Xxxxxxx Debt, as applicable. Neither the Company nor
any of the other Grantors is not intended to be, and shall have no rights as, a
third party beneficiary of this Agreement.
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5. Assignment Subject to Acceptance Hereof. The parties hereto agree that,
subject to the provisions of the following sentence, this Agreement shall inure
to the benefit of any successors or assigns of either party, and that this
Agreement shall be freely assignable by each of them. Notwithstanding the
foregoing, each of the parties hereto agrees that any assignment by it of any
portion of the indebtedness held by it shall be expressly subject to the
provisions hereof, and each holder of any of the Advance Debt, the Additional
and Supplemental Debt, the Trust Debt, or the Xxxxxxx Debt, by its acceptance
thereof, shall be deemed to acknowledge and agree that the provisions set forth
in this Agreement shall be enforceable against such holder.
6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO
ANY CHOICE OF LAW RULES WHICH WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY
OTHER JURISDICTION.
7. Execution. The parties hereto agree that this Agreement may be executed
in any number of counterparts, all of which, taken together, shall constitute
one original document. Signature by facsimile shall bind the parties hereto.
8. Existing Intercreditor Agreement. This Agreement amends and restates,
in its entirety, the Existing Intercreditor Agreement, and any reference to the
Existing Intercreditor Agreement in any instrument, document, or agreement
related to, or issued in connection with, the Advance Debt, the Additional and
Supplemental Debt, the Trust Debt, or the Xxxxxxx Debt, shall mean this Amended
and Restated Intercreditor Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
HUNTINGDON CORPORATION,
as Advance Creditor
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
--------------------------------- ---------------------------------
XXXXXX XXXXXXX Name: Xxxxxx Xxxxxxx
Title: President
X. XXXXXXX IRREVOCABLE HUNTINGDON CORPORATION,
ABC TRUST as Additional and Supplemental Creditor
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ ---------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Trustee Title: President
ACKNOWLEDGED BY:
ABC INVESTMENT CORP XXXXX XXXXXXX, INC.
By: /s/ Xxxx X. Xxxx By: /s/ Xxxx X. Xxxx
----------------------------- -----------------------------
Name: Xxxx X. Xxxx Name: Xxxx X. Xxxx
Title: Executive Vice President Title: Executive Vice President
Address: Two Ridgedale Avenue Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
VIDEO YESTERYEAR, INC. AUDIO BOOK CLUB, INC.
By: /s/ Xxxx X. Xxxx By: /s/ Xxxx X. Xxxx
----------------------------- -----------------------------
Name: Xxxx X. Xxxx Name: Xxxx X. Xxxx
Title: Executive Vice President Title: Executive Vice President
Address: Two Ridgedale Avenue Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
MEDIABAY, INC.
By: /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
