SUBORDINATION AGREEMENT
Exhibit 10.10
THIS SUBORDINATION AGREEMENT (this “Agreement”), dated as of , 2006, (the “Effective
Date”), by and between Silicon Valley Bank (“Senior Creditor”) and
, a (with its successors and assigns, “Subordinated Creditor”).
Capitalized terms used but not otherwise defined herein shall have the meanings given them in
Section 1 below.
RECITALS
A. Starvox Communications, Inc., a California corporation and Capital Telecommunications, Inc.
(“Borrowers”), have entered into that certain Loan and Security Agreement dated , 2006
(as the same may be amended, restated, or otherwise modified from time to time, the “Senior
Creditor Agreement”), by and between Borrowers and Senior Creditor. The funds advanced to or owed
by Borrowers under the Senior Creditor Agreement shall be referred to collectively herein as the
“Senior Loans.” To secure the Senior Loans, Borrowers granted to Senior Creditor under the Senior
Creditor Agreement a security interest in all Borrowers’ personal property assets.
B. Borrowers have entered or propose to into certain Subordinated Loan Documents with
Subordinated Creditor.
C. Subordinated Creditor and Senior Creditor desire to establish and agree upon their
respective rights, priorities and interests governing their respective relationships with Borrowers
and any collateral for the loans granted pursuant to the Subordinated Loan Documents and the Senior
Loan Documents at all times on and after the Effective Date.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, Senior Creditor and Subordinated Creditor
hereby agree as follows:
1. DEFINITIONS; EFFECTIVENESS
As used herein, the following terms shall have the following meanings:
“Senior Debt” means any and all indebtedness and indebtedness and obligations
(including, without limitation, principal, premium (if any), interest, fees, charges, expenses,
costs, professional fees and expenses, and reimbursement obligations) at any time or from time to
time owing from Borrowers to Senior Creditor under the Senior Loan Documents or otherwise,
including but not limited to such amounts as may accrue or be incurred before or after default or
workout or the commencement of any liquidation, dissolution, bankruptcy, receivership, or
reorganization case by or against Borrowers.
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“Senior Loan Documents” means the Senior Creditor Agreement and any security
agreement, promissory note, UCC financing statement, or any other agreement, instrument or document
executed by Borrowers pursuant to or in connection with the Senior Debt or the Senior Creditor
Agreement, as any of the foregoing may from time to time be amended, modified, supplemented,
extended, renewed, restated or replaced.
“Subordinated Debt” means any and all indebtedness and obligations (including, without
limitation, principal, premium (if any), interest, fees, charges, expenses, costs, professional
fees and expenses, and reimbursement obligations) at any time or from time to time owing from
Borrowers to Subordinated Creditor under the Subordinated Loan Documents or otherwise, including
but not limited to such amounts as may accrue or be incurred before or after default or workout or
the commencement of any liquidation, dissolution, bankruptcy, receivership, or reorganization case
by or against Borrowers.
“Subordinated Loan Documents” means any promissory note, loan or credit or similar
agreement, any financing statement, or any other agreement, instrument or document executed by
Borrowers pursuant to or in connection with the Subordinated Debt, as the same may from time to
time be amended, modified, supplemented, extended, renewed, restated or replaced.
Unless otherwise specified, all references in this Agreement to a “Section” shall refer to the
corresponding Section in or to this Agreement. Other capitalized terms used herein and not
otherwise defined herein shall have the meaning given such terms in the Uniform Commercial Code as
in effect in the State of California, as in effect from time to time (the “UCC”).
2. SUBORDINATION
(a) On the terms and conditions set forth below, Subordinated Creditor’s right to payment and
performance of the Subordinated Debt and any and all liens and security interests securing the
Subordinated Debt are hereby subordinated to Senior Creditor’s right to full and indefeasible
payment and performance of the Senior Debt and all liens and security interests securing the Senior
Debt. Subject to and except as set forth in Section 3, Subordinated Creditor shall not ask,
demand, xxx for, take or receive from Borrowers, by setoff or in any other manner, the whole or any
part of any monies which may now or hereafter be owing by Borrowers to Subordinated Creditor, or be
owing by any other person to Subordinated Creditor under a guaranty or similar instrument, on
account of the Subordinated Debt, nor any collateral security for any of the foregoing, including,
without limitation, any personal property collateral granted to Subordinated Creditor pursuant to
the Subordinated Loan Documents, unless and until the Senior Debt shall have been fully paid in
cash and all commitments to extend credit under the Senior Creditor Agreement shall have been
terminated (the temporary reduction of outstanding obligations, liabilities and indebtedness of
Borrowers to Senior Creditor not being deemed to constitute full payment or satisfaction thereof).
(b) Subordinated Creditor shall not create, maintain or perfect any security interest in or
lien on any property of Borrowers (other than any security interests or liens that may exist on the
date hereof in favor of Subordinated Creditor in certain of Borrowers’ personal property
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under and as described in the Subordinated Loan Documents, which liens and security interests shall
be, and hereby are agreed to be, junior and subordinated to the security interests and liens
securing the Senior Debt). If, notwithstanding the foregoing, any lien shall be created or shall
arise in favor of Subordinated Creditor, whether by operation of law or otherwise, in or on any
property of Borrowers or any of its subsidiaries or affiliates to secure all or any portion of the
Subordinated Debt, then the liens granted by Borrowers in any such property in favor of Senior
Creditor to secure the Senior Debt shall in all respects be first and senior liens, superior to
such liens that may be created or arise, and superior to any security interest or lien that may
exist on the date hereof, in either case which liens are in favor of Subordinated Creditor securing
the Subordinated Debt notwithstanding (i) the date, manner or order of creation, attachment or
perfection of any such security interests or liens, (ii) the provisions of the UCC or any other
applicable statutes or court decisions that would provide otherwise in the absence of this
agreement, (iii) the provisions of any contract between Subordinated Creditor, on the one hand, and
Borrowers or any subsidiary or affiliate thereof, on the other, and (iv) whether Subordinated
Creditor or any agent or bailee thereof holds possession of any part any such collateral. In the
event Subordinated Creditor shall have or obtain possession of any such property or shall, in
contravention of this agreement, foreclose upon or enforce its security interest or lien upon any
such property, whether by self-help, judicial action or otherwise, then (i) all such property shall
be immediately delivered to Senior Creditor or, if not deliverable, all cash or non-cash proceeds
and profits of such property shall be paid over to Senior Creditor, without any deduction or
offset, and (ii) until duly deliver or paid to Senior Creditor, any such property or cash or
non-cash proceeds and profits of such property shall be held in trust for the benefit of Senior
Creditor, in the case of each of clause (i) and clause (ii), unless and until all of the Senior
Debt shall have been paid in cash in full and all commitments to extend credit under the Senior
Creditor Agreement shall have been terminated.
(c) The subordination contained in this Agreement is intended to define the rights and duties
of Subordinated Creditor and Senior Creditor; it is not intended that any third party (including
Borrowers or any of its subsidiaries or affiliates, any bankruptcy trustee, receiver, or
debtor-in-possession) shall benefit from it. If the effect of the subordination contained in this
Agreement would be to give any third party a priority status to which that party would not
otherwise be entitled, then that provision shall, to the extent necessary to avoid that priority,
be given no effect and the rights and priorities of Senior Creditor and Subordinated Creditor shall
be determined in accordance with applicable law and this Agreement.
3. PERMITTED PAYMENT
Notwithstanding anything to the contrary in this Agreement, nothing contained in this
Agreement shall preclude Subordinated Creditor from receiving from the Borrowers [the Common Stock
(as defined in that certain Convertible Promissory Note dated (the “Note”) issuable to
Subordinated Creditor upon the conversion of the indebtedness evidenced thereunder into such Common
Stock pursuant to the terms of Section of the Note], in each case, provided that no Event of
Default under the Senior Loan Documents then exists or would result therefrom.
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4. ASSIGNMENT OF SUBORDINATED DEBT
Subordinated Creditor hereby covenants to Senior Creditor that prior to the termination of
this Agreement in accordance with Section 9, the entire Subordinated Debt created in favor of
Subordinated Creditor shall continue to be owing only to Subordinated Creditor, and any collateral
security therefor (including, without limitation, any collateral security granted to Subordinated
Creditor pursuant to the Subordinated Loan Documents) shall continue to be held solely for the
benefit of Subordinated Creditor, unless assigned pursuant to an assignment in which the assignee
agrees in writing to be bound by all of the terms and provisions of this Agreement. Any promissory
note issued pursuant to the Subordinated Loan Documents shall be legended to expressly state that
it is subject to this Agreement.
5. SENIOR CREDITOR’S PRIORITY
In the event of any distribution, division, or application, partial or complete, voluntary or
involuntary, by operation of law or otherwise, of all or any part of the property of Borrowers or
any of its subsidiaries or affiliates or the proceeds thereof to the creditors of Borrowers or any
of its subsidiaries or affiliates, or the readjustment of the Senior Debt and the Subordinated
Debt, whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the
benefit of creditors or any other action or proceeding involving the readjustment of all or any
part of the Senior Debt or the Subordinated Debt, or the application of the property of Borrowers
or any of its subsidiaries or affiliates to the payment or liquidation thereof, or upon the
dissolution, liquidation, reorganization, or other winding up of Borrowers’ or any of its
subsidiaries’ or affiliates’ business, or upon the sale of all or any substantial part of
Borrowers’ or any of its subsidiaries’ or affiliates’ property (any of the foregoing being
hereinafter referred to as an “Insolvency Event”), then, and in any such event, Senior Creditor
shall be entitled to receive the indefeasible payment in cash in full of the Senior Debt before
Subordinated Creditor shall be entitled to receive any payment on account of the Subordinated Debt,
and to that end and in furtherance thereof:
(a) All payments and distributions of any kind or character, whether in cash, property,
or securities, in respect of the Subordinated Debt to which Subordinated Creditor would be
entitled if the Subordinated Debt were not subordinated pursuant to this Agreement, shall be
paid to Senior Creditor and applied in payment of the Senior Debt;
(b) Subordinated Creditor shall file a claim or claims, on the form required in such
proceedings, on or before thirty (30) days prior to the last date such claims or proofs of
claim may be filed pursuant to law or the order of any court exercising jurisdiction over
such proceeding; and
(c) Notwithstanding the foregoing, if any payment or distribution of any kind or
character, whether in cash, properties or securities, shall be received by Subordinated
Creditor on account of the Subordinated Debt before all of the Senior Debt has been paid,
then such payment or distribution shall be received by Subordinated
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Creditor in trust for and shall be immediately paid over to Senior Creditor for application
to the payments of amounts due on the Senior Debt until the Senior Debt shall have been paid
in cash in full.
6. GRANT OF AUTHORITY
In the event of the occurrence of an Insolvency Event, and to enable Senior Creditor to
enforce its rights hereunder in any of the aforesaid actions or proceedings, Senior Creditor is
hereby irrevocably authorized and empowered, in Senior Creditor’s discretion, as follows:
(a) Senior Creditor is hereby irrevocably authorized and empowered (in its own name or
in the name of Subordinated Creditor or otherwise), but shall have no obligation, (i) to
demand, xxx for, collect and receive every payment or distribution referred to in Section 5,
and give acquittance therefor and (ii) (if Subordinated Creditor has failed to file claims
or proofs of claim on or before thirty (30) days prior to the last date such claims or
proofs of claim may be filed pursuant to law or the order of any court exercising
jurisdiction over such proceeding) to file claims and proofs of claim, and (iii) to take
such other action (including, without limitation, enforcing any lien securing payment of the
Subordinated Debt) as it may deem necessary or advisable for the exercise or enforcement of
any of the rights or interests of Senior Creditor hereunder. Subordinated Creditor shall
duly and promptly take such action as Senior Creditor may reasonably request to execute and
deliver to Senior Creditor such authorizations, endorsements, assignments, or other
instruments as Senior Creditor may reasonably request in order to enable Senior Creditor to
enforce any and all claims with respect to, and any liens securing payment of, the
Subordinated Debt as such enforcement is contemplated herein.
(b) To the extent that payments or distributions on account of the Subordinated Debt
are made in property or securities other than cash, Subordinated Creditor authorizes Senior
Creditor to sell or dispose of such property or securities on such terms as are commercially
reasonable in the situation in question. Following full and indefeasible payment in cash of
the Senior Debt and the termination of all commitments related thereto, Senior Creditor
shall remit to the Subordinated Creditor (with all necessary endorsements), to the extent of
Subordinated Creditor’s interest therein, all payments and distributions of cash, property,
or securities paid to and held by Senior Creditor in excess of the allowed amount of the
Senior Debt.
7. PAYMENTS RECEIVED BY SUBORDINATED CREDITOR
Should any payment, distribution, or security be received by the Subordinated Creditor upon or
with respect to the Subordinated Debt in contravention of this Agreement (including any Permitted
Payment as set forth in Section 3) prior to termination of this Agreement in accordance with
Section 9, Subordinated Creditor shall receive and hold the same in trust for the benefit of Senior
Creditor and shall immediately deliver the same to Senior Creditor in precisely the form received
(except for the endorsement or assignment of Subordinated Creditor where necessary)
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for application to the Senior Debt, and, until so delivered, the same shall be held in trust by
such Subordinated Creditor for the benefit of Senior Creditor.
8. FURTHER ASSURANCES; COOPERATION
Subordinated Creditor agrees to cooperate with Senior Creditor and to take all actions that
Senior Creditor may reasonably require to enable Senior Creditor to realize the full benefits of
this Agreement.
9. TERMINATION OR AMENDMENT OF AGREEMENT; NO AMENDMENTS
This Agreement shall be effective upon its execution by each of Senior Creditor and
Subordinated Creditor. After the Effective Date, this Agreement shall remain in effect and shall
not be revoked or amended by Subordinated Creditor, except with the prior written consent of the
Senior Creditor. Subject to Section 13, this Agreement shall terminate upon the earlier to occur
of the following: (a) the date on which the Senior Debt shall have been paid in cash in full and
all commitments to extend credit under the Senior Creditor Agreement shall have been terminated or
(b) the date on which the Subordinated Debt shall have been either converted into the Common Stock
(as defined in the Note) pursuant to Section ___of the Note, cancelled or otherwise paid in cash in
full. Subordinated Creditor shall not amend, supplement or otherwise modify any of the
Subordinated Loan Documents without the written consent of Senior Creditor.
10. ADDITIONAL AGREEMENTS FOR SENIOR CREDITOR
Senior Creditor may administer and manage its credit and other relationships with Borrowers in
its own best interest, without notice to or consent of Subordinated Creditor. At any time and from
time to time, Senior Creditor may enter into any amendment or agreement with Borrowers as Senior
Creditor may deem proper, extending the time of payment of or renewing or otherwise altering the
terms of all or any of the obligations constituting Senior Debt or affecting the collateral
security for, supporting or underlying any or all of the Senior Debt, and may exchange, sell,
release, surrender or otherwise deal with any such collateral without in any way thereby impairing
or affecting this Agreement, and all such additional agreements and amendments shall be Senior Loan
Documents evidencing the Senior Debt; provided, that neither this Section 10 nor any
provision of such agreements shall affect the limitations contained in the definitions of Senior
Creditor or Senior Debt.
11. SUBROGATION
If cash or other property otherwise payable or deliverable to the Subordinated Creditor or on
account of the Subordinated Debt shall have been applied pursuant to this Agreement to the payment
of the Senior Debt, and if the Senior Debt shall have been paid in cash in full and all commitments
to extend credit under the Senior Creditor Agreement shall have been terminated, then Subordinated
Creditor shall be subrogated to any rights of Senior Creditor to receive further payments or
distributions applicable to the Senior Debt until the Subordinated Debt shall have been fully paid.
No such payments or distributions received by the Subordinated Creditor by
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reason of such subrogation shall, as between Borrowers and its creditors other than Senior
Creditor, on the one hand, and Subordinated Creditor, on the other hand, be deemed to be a payment
by Borrowers on account of the Subordinated Debt owed to Subordinated Creditor.
12. SUBORDINATED CREDITOR’S WAIVERS AND COVENANTS
(a) Without limiting the generality of any other waiver made by Subordinated Creditor in this
Agreement, Subordinated Creditor hereby expressly waives (i) reliance by Senior Creditor upon the
subordination and other agreements herein provided, and (ii) any claim that Subordinated Creditor
may now or hereafter have against Senior Creditor arising out of any and all actions that Senior
Creditor, in good faith, takes or omits to take (A) with respect to the creation, perfection or
continuation of liens in or on any collateral security for the Senior Debt, (B) with respect to the
foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the
collateral security for the Senior Debt, (C) with respect to the collection of any claim for all or
any part of the Senior Debt from any account debtor, guarantor or any other third party and (D)
with respect to the valuation, use, protection or release of any collateral security for the Senior
Debt.
(b) Without limiting the generality of any other covenant or agreement made by Subordinated
Creditor in this Agreement, Subordinated Creditor hereby covenants and agrees that (i) Senior
Creditor has not made any warranties or representations with respect to the due execution,
legality, validity, completeness or enforceability of the Senior Creditor Agreement or any of the
other Senior Loan Documents, or the collectibility of the Senior Debt; and (ii) Subordinated
Creditor will not interfere with or in any manner oppose a disposition of any collateral security
for the Senior Debt by Senior Creditor.
13. REINSTATEMENT OF SENIOR DEBT
To the extent that Senior Creditor receives payments on or in respect of the Senior Debt or
proceeds of any collateral security for the Senior Debt, which payments or proceeds are
subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law,
common law, or equitable cause, then, to the extent of such payments or proceeds invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid, the Senior Debt, or
part thereof, intended to be satisfied shall be revived and continue in full force and effect as if
such payments or proceeds had not been received by Senior Creditor.
14. NO WAIVERS
Senior Creditor shall not be prejudiced in its rights under this Agreement by any act or
failure to act of Borrowers or Subordinated Creditor or any noncompliance of Borrowers or
Subordinated Creditor with any agreement or obligation, regardless of any knowledge thereof which
Senior Creditor may have, or with which Senior Creditor may be charged; no action permitted
hereunder that has been taken by Senior Creditor shall in any way affect or impair the rights or
remedies of Senior Creditor in the exercise of any other right or remedy or shall operate
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as a waiver thereof; no single or partial exercise by Senior Creditor of any right or remedy shall
preclude any other or further exercise thereof; and no modification or waiver of any of the
provisions of this Agreement shall be binding upon Senior Creditor, in each case except as
expressly set forth in a writing duly signed and delivered by Senior Creditor.
15. INFORMATION CONCERNING BORROWERS; CREDIT ADMINISTRATION
Subordinated Creditor hereby assumes responsibility for keeping itself informed of the
financial condition of Borrowers, its subsidiaries and affiliates, any and all endorsers and any
and all guarantors of the Senior Debt and of all other circumstances bearing upon the risk of
nonpayment of the Senior Debt or the Subordinated Debt that diligent inquiry would reveal, and
Subordinated Creditor hereby agrees that Senior Creditor shall not have any duty to advise the
Subordinated Creditor of information known to Senior Creditor regarding such condition.
16. NOTICES
Except as otherwise provided herein, all notices and service of process required,
contemplated, or permitted hereunder or with respect to the subject matter hereof shall be in
writing, and shall be deemed to have been validly served, given or delivered upon the earlier of:
(i) the first business day after transmission by facsimile or hand delivery or deposit with an
overnight express service or overnight mail delivery service; or (ii) the third calendar day after
deposit in the United States mails, with proper first class postage prepaid, and shall be addressed
to the party to be notified as follows:
If to Senior Creditor:
Silicon Valley Bank
Attention: Xxx Xxxxx
Attention: Xxx Xxxxx
Facsimile:
If to Subordinated Creditor:
[Name of Entity]
Attention:
[address]
[address]
Facsimile:
Attention:
[address]
[address]
Facsimile:
17. SEVERABILITY
Wherever possible, each provision of this Agreement shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of
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such prohibition or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
18. GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws of the State
of California without regard to principles of conflict of laws that would cause the application of
laws of any other jurisdiction.
19. ASSIGNMENT
This Agreement shall be binding upon Subordinated Creditor and its respective successors and
assigns, and shall inure to the benefit of and be enforceable by Senior Creditor and its successors
and assigns.
20. MUTUAL WAIVER OF JURY TRIAL
TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUBORDINATED CREDITOR AND SENIOR CREDITOR EACH
WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS
AGREEMENT, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL
INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH
ITS COUNSEL. WITHOUT INTENDING IN ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO WAIVE THEIR RESPECTIVE
RIGHT TO A TRIAL BY JURY, if the above waiver of the right to a trial by jury is not enforceable,
the parties hereto agree that any and all disputes or controversies of any nature between them
arising at any time shall be decided by a reference to a private judge, mutually selected by the
parties (or, if they cannot agree, by the Presiding Judge of the Santa Xxxxx County, California
Superior Court) appointed in accordance with California Code of Civil Procedure Section 638 (or
pursuant to comparable provisions of federal law if the dispute falls within the exclusive
jurisdiction of the federal courts), sitting without a jury, in Santa Xxxxx County, California; and
the parties hereby submit to the jurisdiction of such court. The reference proceedings shall be
conducted pursuant to and in accordance with the provisions of California Code of Civil Procedure
§§ 638 through 645.1, inclusive. The private judge shall have the power, among others, to grant
provisional relief, including without limitation, entering temporary restraining orders, issuing
preliminary and permanent injunctions and appointing receivers. All such proceedings shall be
closed to the public and confidential and all records relating thereto shall be permanently sealed.
If during the course of any dispute, a party desires to seek provisional relief, but a judge has
not been appointed at that point pursuant to the judicial reference procedures, then such party may
apply to the Santa Xxxxx County, California Superior Court for such relief. The proceeding before
the private judge shall be conducted in the same manner as it would be before a court under the
rules of evidence applicable to judicial proceedings. The parties shall be entitled to discovery
which shall be conducted in the same manner as it would be before a court under the rules of
discovery applicable to judicial proceedings. The private judge shall oversee discovery and may
enforce all
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discovery rules and order applicable to judicial proceedings in the same manner as a trial court
judge. The parties agree that the selected or appointed private judge shall have the power to
decide all issues in the action or proceeding, whether of fact of law, and shall report a statement
of decision thereon pursuant to the California Code of Civil Procedure § 644(a). Nothing in this
paragraph shall limit the right of any party at any time to exercise self-help remedies,
foreclosure against collateral, or obtain provisional remedies. The private judge shall also
determine all issues relating to the applicability, interpretation and enforceability of this
paragraph.
21. COUNTERPARTS
This Agreement and any amendments, waivers, consents or supplements hereto may be executed in
any number of counterparts, and by different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed an original, but all of which counterparts together
shall constitute but one and the same instrument.
[Signature page follows.]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written.
| SENIOR CREDITOR: | SUBORDINATED CREDITOR: | |||||||
| SILICON VALLEY BANK | ||||||||
Signature:
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Signature: | |||||||
Print Name:
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Print Name: | |||||||
Title:
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Title: | |||||||
The undersigned hereby accepts and consents to the foregoing Agreement and agrees to be bound by
all of the provisions thereof and to recognize all priorities and other rights granted by
Subordinated Creditor thereby or thereunder to Senior Creditor and to pay Senior Creditor in
accordance therewith.
| BORROWERS: | ||||||
| STARVOX COMMUNICATIONS, INC. | ||||||
By: |
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Name:
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Title:
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| CAPITAL TELECOMMUNICATIONS, INC. | ||||||
By: |
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Name:
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Title:
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[Signature page to Subordination Agreement]
