Exhibit 10.14
SECURITY INTEREST SUBORDINATION AND SUBROGATION AGREEMENT
THIS SECURITY INTEREST SUBORDINATION AND SUBROGATION AGREEMENT (the
"Agreement") is entered into on this 7th day of February, 2003, by and between
Statmon Technologies, Corp., a Nevada corporation located at 000 X. Xxxxx Xxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx, 00000 ("Statmon"), Xxxx X. Xxxx, an
individual residing at 0000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxx, XX 00000 ("Xxxx"),
Xxxxxx Consulting, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
("Thieme Consulting") and Xxxxxx Corporation, a Delaware corporation, with an
office located at 0000 Xxxxxxx Xxx, Xxxxx, Xxxx 00000 ("Xxxxxx"). Xxxx and
Xxxxxx Consulting are occasionally referred to individually or collectively as
"Holder" or "Holders."
RECITALS
A. WHEREAS, Statmon is the obligor pursuant to a Promissory Note
between Statmon and Xxxx dated September 8, 2000 (the "Xxxx Note") which was
executed contemporaneously with a Note Purchase and Shareholder Rights Agreement
and a Trademark Security Agreement (collectively, the "Xxxx Note Agreements");
B. WHEREAS, Statmon is the obligor pursuant to three Promissory Notes
between Statmon and Thieme Consulting Inc. dated November 7, 2001, The Global
Opportunity Fund dated November 7. 2001 and Veinvest dated November 6, 2001
(collectively the "Thieme Consulting Note") which were executed
contemporaneously with a Pledge and Security Agreement dated October 12, 2001
(collectively, the " Thieme Consulting Note Agreements");
C. WHEREAS, the original maturity date of both xxx Xxxx Note and the
Thieme Consulting Notes are concurrently being extended;
D. WHEREAS, each of xxx Xxxx Note Agreements and the Thieme
Consulting Note Agreements contain provisions which secure xxx Xxxx Note and the
Thieme Consulting Note with all or part of the assets of Statmon including, but
not limited to, the intellectual property of Statmon.
E. WHEREAS, Statmon and Xxxxxx are presently negotiating an
agreement for Purchase and Sale of Remote Monitoring Products ("Xxxxxx
Agreement") which, as a key provision of such agreement, contains an exclusive
right to sell and license within the broadcast industry certain Exclusive
Products and Software and to use other of the Licensed Materials (as defined in
the Xxxxxx Agreement) developed by Statmon (herein collectively "Intellectual
Property"); and
F. WHEREAS, to the extent hereinbelow set forth, the Holders of xxx
Xxxx Note and the Thieme Note for themselves and any successors and assigns have
each agreed to subrogate any security interest provided for by xxx Xxxx Note
Agreements and/or the Thieme Note Agreements or otherwise granted to the
Holders, respectively, to the interests of Xxxxxx in such Intellectual Property
under the Xxxxxx Agreement for the purposes of facilitating the transaction by
and between Statmon and Xxxxxx.
Statmon Security Interest Subordination 020503
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
AGREEMENT
1. XXXX SUBORDINATION AND SUBROGATION. So long as the Xxxxxx
Agreement has not been terminated by Statmon for a breach of obligations by
Xxxxxx or is not otherwise terminated or expired pursuant to Section 6 of this
Agreement, any and all security interests in the assets of Statmon which are
held by Xxxx Xxxx as Holder pursuant to xxx Xxxx Note and xxx Xxxx Note
Agreements is hereby subrogated to the rights of Xxxxxx solely to the extent to
exclusively market and resell Statmon Exclusive Products and sublicense the
Software and use other of the Licensed Materials in the broadcast industry, such
that Xxxxxx would be able to continue to do so despite any foreclosure or
exercise of any other right or remedy by Xxxx Xxxx and/or his successors and
assigns. No provision of this Agreement shall be interpreted to give any party
the right to prevent Xxxx Xxxx as Holder from foreclosing on its security
interest in the assets of Statmon, provided that Xxxxxx is allowed to continue
to market and resell Statmon Exclusive Products and license the Software and use
other Licensed Materials in the broadcast industry to the extent provided in the
Xxxxxx Agreement.
2. THIEME CONSULTING SUBORDINATION AND SUBROGATION. So long as the
Xxxxxx Agreement has not been terminated by Statmon for a breach of obligations
by Xxxxxx or is not otherwise terminated or expired pursuant to Section 6 of
this Agreement, any and all security interests in the assets of Statmon which
are held by Thieme Consulting as Holder pursuant to the Thieme Consulting Note
and the Thieme Consulting Note Agreements is hereby subrogated to the rights of
Xxxxxx solely to the extent to allow Xxxxxx to exclusively market and resell
Statmon Exclusive Products and sublicense the Software and use the other of the
Licensed Materials in the broadcast industry, such that Xxxxxx would be able to
continue to do so despite any foreclosure or exercise of any other right or
remedy by Thieme Consulting and/or its successors and assigns. Notwithstanding
anything in this agreement to the contrary, no provision of this Agreement shall
be interpreted to give any party the right to prevent Thieme Consulting as
Holder from foreclosing on its security interest in the assets of Statmon,
provided that Xxxxxx is allowed to continue to market and resell Statmon
Exclusive Products and license the Software and use other Licensed Materials in
the broadcast industry to the extent provided in the Xxxxxx Agreement.
3. LEGEND TO ACCOMPANY NOTES. Concurrently with the execution of
this Agreement, each of Xxxx Xxxx and Xxxxxx Consulting shall execute an
amendment to xxx Xxxx Note Agreements and the Thieme Consulting Agreements,
respectively, substantially in the form set forth in Attachment "A". Such
amendment shall include a legend which indicates that any security interest
granted by each Note Agreement is subject to the subrogation rights solely to
the extent granted by this Agreement.
4. FILING OF UCC-3. Xxxxxx Corporation shall be permitted to file a
form UCC-3 reflecting such subordination and subrogation for each UCC-1 filing
made by each of Xxxx and Thieme Consulting and each of the Holders hereby
authorizes such filings (or of similar statements or instruments under the law
of any jurisdiction, and amendments thereto), without the Holders signature.
Statmon Security Interest Subordination 020503
5. NOTICE TO XXXXXX OF FORECLOSURE. Each of Xxxx and Thieme
individually agree to provide Xxxxxx with simultaneous notice of any default
notices or notice of foreclosure sate or strict foreclosure (accepting
collateral in satisfaction of debt) related to their respective Notes. Notice
shall be given to both Xxxx Xxxx and Xxxxx Xxxxx, Esq., at Xxxxxx Corporation,
0000 Xxxxxxx Xxx, Xxxxx, Xxxx 00000, and by facsimile to both recipients at
(000) 000-0000.
6. DEFAULT / TERMINATION OF SUBROGATION.
a. DEFAULT. In the event the Xxxxxx Agreement has been
terminated by Statmon pursuant to Section 24.2 of the Xxxxxx Agreement, the
subrogation and subordination rights contemplated by this Agreement shall cease
immediately upon notice of such termination by Statmon to each respective
Holder, with a copy to Xxxxxx. Should the termination be held to be improper
after the parties have submitted the dispute in accordance with the terms of
Article 40 of the Xxxxxx Agreement, then each respective Holder shall execute
whatever documents are necessary to reinstate the subrogation and subordination
rights granted hereunder.
b. TERMINATION. In addition to other provisions hereof
relating to termination, the subordination and subrogation rights granted
pursuant to this Agreement shall terminate immediately upon either party's
termination pursuant to sections 24.1 and Xxxxxx' termination pursuant to 24.3
of the Xxxxxx Agreement. Moreover, the subordination and subrogation rights
granted pursuant to this Agreement shall also terminate immediately upon Xxxxxx
termination for cause pursuant to section 24,2 unless Xxxxxx continues to
distribute the Software and has not exercised its option to purchase the
intellectual property rights in the Software as set forth in section
38.2(c)(iii)(a) or (b) of the Xxxxxx Agreement and one of the following is true:
(1) Xxxxxx is continuing to make payments to Statmon of
Software license fees which shall be at a reasonable market price as of the date
of termination for the Software licenses it distributes; or at Xxxxxx' option,
(2) until such time as the outstanding balance of the
Notes have been paid off, Xxxxxx makes payments to each of the two Holders
respectively of half of Software license fees which shall be at a reasonable
market price as of the date of termination (which would have otherwise been
paid to Statmon under (1) above). In the event Xxxxxx chooses to make such
payments to the two Holders, Statmon hereby waives any rights that it might
otherwise have to receive such amounts and Xxxxxx shall be relieved from its
obligations to make such payments to Statmon.
In addition, Xxxxxx shall receive a credit in the amount
of the aggregate Software license fees paid pursuant to paragraphs (1) and (2)
above, to be applied toward the purchase price of the intellectual property
rights in the Software as set forth in section 38.2(c)(iii)(a) or (b) of the
Xxxxxx Agreement.
Statmon Security Interest Subordination 020503
c. EXPIRATION. The subordination and subrogation rights
granted pursuant to this Agreement shall terminate immediately upon expiration
of the Term of the Xxxxxx Agreement
7. MISCELLANEOUS.
a. APPLICABLE LAW AND VENUE. This Agreement shall be construed
in accordance with, and any dispute arising in connection shall be governed by,
the laws of the State of California. Any suit, action or proceeding with respect
to this Agreement shall be brought only in Los Angeles County in the State of
California. The parties hereto hereby irrevocably waive, to the fullest extent
permitted by law, any objection that any of them may now or hereafter have to
the laying of venue of any action or proceeding rising out of or relating to
this Agreement brought in Los Angeles County, California, as well as any
argument that such proceeding has been brought in an inconvenient forum.
b. ASSIGNMENT. Except for an assignment or delegation that may
occur or be deemed to have occurred as a result of a merger, sale of assets or
other business combination in which the surviving party specifically assumes the
obligation of the other, no right, interest or obligation in this Agreement
shall be assigned or delegated without the consent of Xxxxxx and Statmon.
Notwithstanding the foregoing, nothing herein shall prevent either Holder from
assigning, transferring or selling their Note to another holder (the "New
Holder"), so long as this Agreement is also assigned to the New Holder, and such
New Holder agrees to assume all obligations hereunder.
c. SECTION HEADINGS. The heading of the Sections are inserted
for reference only and are not intended to be part of nor affect the meaning or
interpretation of this Agreement.
d. SEVERABILITY. If any term of this Agreement or portion of
any term of this Agreement is held as invalid or unenforceable, the remainder
shall not be affected, and each term and provision shall be valid and enforced
to the fullest extent permitted by law.
e. WAIVER. A waiver by either party of any of the terms and
conditions or covenants to be performed by the other shall not be construed to
be a waiver of any succeeding breach, nor of any other term, condition or
covenant contained in this Agreement.
f. ARBITRATION. Any dispute arising under this Agreement shall
first be submitted to mediation and then, if the matter has still not been
resolved, shall be resolved through binding arbitration in accordance with the
rules of the American Arbitration Association.
g. ATTORNEYS" FEES. If it becomes necessary to bring suit to
enforce any provision of this Agreement, the prevailing party shall be entitled
to its reasonable attorneys' fees and costs of suit.
h. ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties and may not be altered, varied, revised or
amended except by as agreed in writing by both parties and signed by both
parties.
Statmon Security Interest Subordination 02050
DATE: January _, 2003 XXXX X. XXXX
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DATE: January_, 2003 XXXXX XXXXXX, for
THIEME CONSULTING, Inc.
GLOBAL OPPORTUNITIES
FUND LTD. & VENINVEST
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By:
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Its:
DATE: January_, 2003 STATMON TECHNOLOGIES, INC.
/s/ [illegible]
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By:
CEO
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Its:
DATE: January _, 2003 XXXXXX CORPORATION
/s/ [illegible]
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By:
VP Studio products & Syst
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Its:
Statmon Security Interest Subordination 02050
DATE: February 7, 2003 XXXX X. XXXX
/S/ XXXX X. XXXX
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DATE: January_, 2003 XXXXX XXXXXX, for
THIEME CONSULTING, Inc.
GLOBAL OPPORTUNITIES
FUND LTD. & VENINVEST
--------------------------------
By:
--------------------------------
Its:
DATE: February 7, 2003 STATMON TECHNOLOGIES, INC.
/s/ [illegible]
--------------------------------
By:
CEO
--------------------------------
Its:
DATE: January _, 2003 XXXXXX CORPORATION
--------------------------------
By:
--------------------------------
Its:
Statmon Security Interest Subordination 02050
DATE: February _,2003 XXXX X. XXXX
--------------------------------
DATE: February 7, 2003 XXXXX XXXXXX, for
THIEME CONSULTING, Inc.
GLOBAL OPPORTUNITIES
FUND LTD. & VENINVEST
/s/ [Illegible}
--------------------------------
DATE: February 7, 2003 STATMON TECHNOLOGIES, INC.
--------------------------------
By:
--------------------------------
Its:
DATE: February 7, 2003 XXXXXX CORPORATION
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By:
--------------------------------
Its:
Statmon Security Interest Subordination 02050
ATTACHMENT "A"
Form of Legend
AMENDMENT TO [SECURED] PROMISSORY NOTE
The following Amendment dated February 7, 2003, amends the Promissory Note dated
September 8, 2000 by and between Statmon Technologies Company and Xxxx X. Xxxx
to include the following Legend as the first page of the Note, as well as any
ancillary agreements executed in conjunction with such Note:
"THE SECURITY INTERESTS GRANTED TO SECURE THE ATTACHED PROMISSORY NOTE HAVE
HEREBY BEEN SUBROGATED TO THE RIGHTS OF XXXXXX CORPORATION PURSUANT TO AND
SOLELY TO THE EXTENT PROVIDED IN THAT CERTAIN AGREEMENT ENTERED INTO BETWEEN THE
NOTE HOLDER, THE PAYEE, AND XXXXXX CORPORATION DATED JANUARY _, 2003. ANY
ASSIGNMENT, SALE OR TRANSFER OF THIS NOTE SHALL INCLUDE ALL THE RIGHTS AND
OBLIGATIONS OF THE LIENHOLDER PURSUANT TO SUCH AGREEMENT."
DATE: February 7, 2003 [HOLDER'S NAME] Xxxx X. Xxxx
/S/ XXXX X. XXXX
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By:
--------------------------------
Its:
DATE: January _,2003 STATMON TECHNOLOGIES, INC.
/S/ [Illegible]
--------------------------------
By:
CEO
--------------------------------
Its:
Statmon Security Interest Subordination 020503,
ATTACHMENT "A"
Form of Legend
AMENDMENT TO [SECURED] PROMISSORY NOTE
The following Amendment dated February 7, 2003, amends The Promissory Note dated
____________ by and between Statmon Technologies Company and [Xxxx X.
Xxxx/Global Opportunity Fund Limited, c/o Thieme Consulting, Inc.] to include
the following Legend as the first page of the Note, as wall as any ancillary
agreements executed in conjunction with such Note.
"THE SECURITY INTERESTS GRANTED TO SECURE THE ATTACHED PROMISSORY NOTE HAVE
HEREBY BEEN SUBROGATED TO THE RIGHTS OF XXXXXX CORPORATION PURSUANT TO AND
SOLELY TO THE EXTENT PROVIDED IN THAT CERTAIN AGREEMENT ENTERED INTO BETWEEN THE
NOTE HOLDER, THE PAYEE, AND XXXXXX CORPORATION DATED FEBRUARY 7, 2003. ANY
ASSIGNMENT, SALE OR TRANSFER OF THIS NOTE SHALL INCLUDE ALL THE RIGHTS Am
OBLIGATIONS OF THE LIENHOLDER PURSUANT TO SUCH AGREEMENT."
DATE: February 7, 2003 /s/ [illegible]
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XXXXX XXXXXX for XXXXXX
CONSULTING, INC.,GLOBAL
OPPORTUNITY FUND LTD, &
VENINVEST
DATE: February 7, 2003 STATMON TECHNOLOGIES, CORP.,
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By:
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Its:
