EXHIBIT 10.14
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT (this "Agreement") dated as of October 28,
1999, between SILICON VALLEY BANK, a California-chartered bank with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and with a loan production office located at Wellesley Office Park, ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, doing business under the name
"Silicon Valley East" ("Bank") and CKG ▇▇▇▇▇.▇▇▇, INC., d/b/a Phase 2 Media,
("Borrower"), provides the terms on which Bank shall lend to Borrower and
Borrower shall repay Bank. The parties agree as follows:
1 ACCOUNTING AND OTHER TERMS
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Accounting terms not defined in this Agreement shall be construed following
GAAP. Calculations and determinations must be made following GAAP. The term
"financial statements" includes the notes and schedules. The terms "including"
and "includes" always mean "including (or includes) without limitation" in this
or any Loan Document. Capitalized terms in this Agreement shall have the
meanings set forth in Section 13. This Agreement shall be construed to impart
upon Bank a duty to act reasonably at all times.
2 LOAN AND TERMS OF PAYMENT
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2.1 Credit Extensions. Borrower shall pay Bank the unpaid principal
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amount of all Credit Extensions and interest on the unpaid principal amount of
the Credit Extensions as and when due in accordance with this Agreement.
2.1.1 Letter of Credit.
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(a) Bank shall issue or have issued (by a banking institution
acceptable to Borrower) one (1) Letter of Credit for Borrower's account not
exceeding Two Million Five Hundred Thousand Dollars ($2,500,000.00) in
substantially the form of Exhibit 2.1.1(a) hereto. The Letter of Credit shall
expire no later than 180 days after the Maturity Date provided Borrower's Letter
of Credit reimbursement obligation is secured by (a) the Guaranty or (b) cash on
terms acceptable to Bank at any time after the Maturity Date if the term of this
Agreement is not extended by Bank. The Letter of Credit shall be subject to the
terms and conditions of Bank's form of standard Application and Letter of Credit
Agreement.
(b) The obligation of Borrower to immediately reimburse Bank for
any drawing made under the Letter of Credit shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement and such Letter of Credit and Letter of Credit Agreement, under
all circumstances whatsoever. Borrower shall indemnify, defend, protect, and
hold Bank harmless from any loss, cost, expense or liability, including, without
limitation, reasonable attorneys' fees, arising out of or in connection with
such Letter of Credit other than claims relating the Bank's wilful failure to
comply with its obligations under the Letter of Credit.
(c) Borrower may request that Bank issue the Letter of Credit
payable in a currency other than United States Dollars. If a demand for payment
is made under any such Letter of Credit, Bank shall treat such demand as an draw
of the equivalent of the amount thereof (plus cable charges) in United States
currency at the then prevailing rate of exchange in San Francisco, California,
for sales of that other currency for cable transfer to the country of which it
is the currency.
2.2 Fees. Borrower shall pay to Bank:
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(a) Letter of Credit Fee. A fully earned, non-refundable letter of
credit fee of Twenty-Five Thousand Dollars ($25,000.00) due on the Closing Date;
and
(b) Bank Expenses. All Bank Expenses (including reasonable
attorneys' fees and expenses incurred through and after the Closing Date when
due.
3 CONDITIONS OF LOANS
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3.1 Conditions Precedent to Initial Credit Extension. The obligation of
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Bank to make the initial Credit Extension is subject to the condition precedent
that Bank shall have received, in form and substance satisfactory to Bank, the
following:
(a) this Agreement:
(b) a certificate of the Secretary of Borrower with respect to its
certificate of incorporation, bylaws, incumbency and resolutions
authorizing the execution and delivery of this Agreement;
(c) a certificate of Guarantor with respect to operating agreement,
certificate of formation, incumbency and authorization to execute and
deliver the Guaranty;
(d) an opinion of Borrower's counsel as to authority and
enforceability as to the Borrower;
(e) guaranty by the Guarantor;
(f) financing statements (Forms UCC-1);
(g) insurance certificate;
(h) payment of the fees and Bank Expenses then due specified in
Section 2.2 hereof;
(i) Certificates of Good Standing and Legal Existence for Borrower
and Guarantor;
(j) Certificates of Foreign Qualification (if applicable) for
Borrower and Guarantor; and
(k) such other documents, and completion of such other matters, as
Bank may reasonably deem necessary or appropriate.
4 CREATION OF SECURITY INTEREST
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4.1 Grant of Security Interest. Borrower grants Bank a continuing
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security interest in all presently existing and later acquired Collateral to
secure all Obligations and performance of each of Borrower's duties under the
Loan Documents. Any security interest shall be a first priority security
interest in the Collateral. Bank may place a "hold" on any deposit account
pledged as Collateral. If the Agreement is terminated, Bank's lien and security
interest in the Collateral shall continue until Borrower fully satisfies its
Obligations.
5 REPRESENTATIONS AND WARRANTIES
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Borrower represents and warrants as follows:
5.1 Due Organization and Authorization. Borrower and each Subsidiary is
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duly existing and in good standing in its state of formation and qualified and
licensed to do business in, and in good standing in, any state in which the
conduct of its business or its ownership of property requires that it be
qualified except where the failure to do so could not reasonably be expected to
cause a Material Adverse Change.
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not conflict with Borrower's organizational documents,
nor constitute an event of default under any material agreement by which
Borrower is bound. Borrower is not in default under any agreement to which or by
which it is bound in which the default could reasonably be expected to cause a
Material Adverse Change.
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5.2 Collateral. Borrower has good title to the Collateral, free of Liens
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except Permitted Liens. All Inventory is in all material respects of good and
marketable quality, free from material defects.
5.3 Litigation. Except as shown in the Schedule, there are no actions or
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proceedings pending or, to Borrower's knowledge, threatened by or against
Borrower or any Subsidiary in which an adverse decision could reasonably be
expected to cause a Material Adverse Change.
5.4 No Material Adverse Change in Financial Statements. All consolidated
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financial statements for Borrower and any Subsidiary delivered to Bank fairly
present in all material respects Borrower's consolidated financial condition and
Borrower's consolidated results of operations. There has not been any material
deterioration in Borrower's consolidated financial condition since the date of
the most recent financial statements submitted to Bank.
5.5 Solvency. Borrower is able to pay its debts (including trade debts)
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as they mature.
5.6 Regulatory Compliance. Borrower is not an "investment company" or a
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company "controlled" by an "investment company" under the Investment Company
Act. Borrower is not engaged as one of its important activities in extending
credit for margin stock (under Regulations T and U of the Federal Reserve Board
of Governors). Borrower has complied in all material respects with the Federal
Fair Labor Standards Act. Borrower has not violated any laws, ordinances or
rules, the violation of which could reasonably be expected to cause a Material
Adverse Change. None of Borrower's or any Subsidiary's properties or assets has
been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge,
by previous Persons, in disposing, producing, storing, treating, or transporting
any hazardous substance other than legally. Borrower and each Subsidiary has
timely filed all required tax returns and paid, or made adequate provision to
pay, all material taxes, except those being contested in good faith with
adequate reserves under GAAP. Borrower and each Subsidiary has obtained all
consents, approvals and authorizations of, made all declarations or filings
with, and given all notices to, all government authorities that are necessary to
continue its business as currently conducted except where the failure to make
such declarations, notices or filings would not reasonably be expected to result
in a Material Adverse Change.
5.7 Subsidiaries. Borrower does not own any stock, partnership interest
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or other equity securities except for Permitted Investments.
5.8 Full Disclosure. No representation, warranty or other statement of
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Borrower in any certificate or written statement given to Bank contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained in the certificates or statements not
misleading.
6 AFFIRMATIVE COVENANTS
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Borrower shall do all of the following:
6.1 Government Compliance. Borrower shall maintain its and all
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Subsidiaries' corporate existence and good standing in its jurisdiction of
incorporation and maintain qualification in each jurisdiction in which the
failure to so qualify could have a material adverse effect on Borrower's
business or operations. Borrower shall comply, and have each Subsidiary comply,
with all laws, ordinances and regulations to which it is subject, noncompliance
with which could have a material adverse effect on Borrower's business or
operations or cause a Material Adverse Change.
6.2 Financial Statements, Reports, Certificates. Borrower shall deliver
to Bank: (i) as soon as available, but no later than thirty (30) days after the
last day of each month, a company prepared consolidated balance sheet and income
statement covering Borrower's consolidated operations during the period, in a
form acceptable to Bank and certified by a Responsible Officer of Borrower; (ii)
as soon as available, but no later than forty-five (45) days after the last day
of each quarter, a company prepared consolidated balance sheet and income
statement covering Guarantor's consolidated operations during the period, in a
form acceptable to Bank and certified by a Responsible Officer of Guarantor;
(iii) as soon as available, but no later than one hundred fifty (150) days after
the end of Borrower's fiscal year, audited, consolidated financial statements
prepared under GAAP, consistently applied, together with an unqualified opinion
on the financial statements from an independent certified public accounting firm
acceptable to Bank; (iv) within
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five (5) days of filing, copies of all statements, reports and notices made
available to Borrower's security holders or to any holders of Subordinated Debt
and all reports on Form 10-K, 10-Q and 8-K filed with the Securities and
Exchange Commission; (v) a prompt report of any legal actions pending or
threatened against Borrower or any Subsidiary that could result in damages or
costs to Borrower or any Subsidiary of One Hundred Thousand Dollars
($100,000.00) or more; and (vi) budgets, sales projections, operating plans or
other financial information Bank reasonably requests.
6.3 Inventory; Returns. Borrower shall keep all Inventory in good and
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marketable condition, free from material defects. Returns and allowances between
Borrower and its account debtors shall follow Borrower's customary practices as
they exist at the Closing Date. Borrower must promptly notify Bank of all
returns, recoveries, disputes and claims that involve more than Fifty Thousand
Dollars ($50,000.00).
6.4 Taxes. Borrower shall make, and cause each Subsidiary to make, timely
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payment of all material federal, state, and local taxes or assessments unless
Borrower and/or its Subsidiary legally contests any of same, owing by Borrower
and shall deliver to Bank, on demand, appropriate certificates attesting to such
payments or contest thereof.
6.5 Insurance. Borrower shall keep its business and the Collateral insured
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for risks and in amounts, as Bank reasonably requests. Insurance policies shall
be in a form, with companies, and in amounts that are reasonably satisfactory to
Bank. All property policies shall have a lender's loss payable endorsement
showing Bank as an additional loss payee and all liability policies shall show
the Bank as an additional insured and all policies shall provide that the
insurer must give Bank at least twenty (20) days notice before canceling its
policy. At Bank's request, Borrower shall deliver certified copies of policies
and evidence of all premium payments. Proceeds payable under any policy shall,
be payable to Borrower unless an Event of Default has occurred and is
continuing, in which event, proceeds will be then payable to the Bank on account
of the Obligations. So long as no Event of Default has occurred and is
continuing, Borrower shall have the option of applying the proceeds of any
casualty policy up to Fifty Thousand ($50,000.00) toward the replacement or
repair of destroyed or damaged property; provided that (i) any such replaced or
repaired property (a) shall be of equal or like value as the replaced or
repaired Collateral and (b) shall be deemed Collateral in which Bank has been
granted a first priority security interest and (ii) after the occurrence and
during the continuation of an Event of Default all proceeds payable under such
casualty policy shall, at the option of the Bank, be payable to Bank on account
of the Obligations.
6.6 Further Assurances. Borrower shall execute any further instruments and
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take further action as Bank requests to perfect or continue Bank's security
interest in the Collateral or to effect the purposes of this Agreement.
7 NEGATIVE COVENANTS
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Borrower shall not do any of the following without the Bank's written
consent, which shall not be unreasonably withheld:
7.1 Dispositions. Convey, sell, lease, transfer or otherwise dispose of
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(collectively a "Transfer"), or permit any of its Subsidiaries to Transfer, all
or any material part of its business or property, other than a Transfer (i) of
Inventory in the ordinary course of business; (ii) of exclusive or non-exclusive
licenses and similar arrangements for the use of the property of Borrower or its
Subsidiaries in the ordinary course of business; (iii) of worn-out, damaged or
obsolete Equipment; (iv) of subleased leased space to the extent necessary; or
(v) a Transfer by Borrower to a Subsidiary or vice versa provided such
Subsidiary becomes a borrower hereunder and complies with all the
representations and warranties of Borrower hereunder.
7.2 Changes in Business, Ownership, Management or Business Locations.
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Engage in or permit any of its Subsidiaries to engage in any business
substantially different from the businesses currently engaged in by Borrower.
Borrower shall not, without at least thirty (30) days prior written notice to
Bank, relocate its principal executive office or add any new offices or business
locations.
7.3 Mergers or Acquisitions. Merge or consolidate, or permit any of its
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Subsidiaries to merge or consolidate, with any other Person, or acquire, or
permit any of its Subsidiaries to acquire, all or substantially all of the
capital stock or property of another Person (each a "Business Acquisition");
provided, however, the foregoing shall not
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prohibit (i) a merger, consolidation or other combination, provided that the
surviving entity has a net worth not less than an amount equal to Borrower's net
worth on the date hereof; or (ii) any Business Acquisition by Borrower or any of
its Subsidiaries so long as (x) no Event of Default shall have occurred and be
continuing, (y) the purchase price for such Business Acquisition (if in cash or
debt), when aggregated with all other Business Acquisitions which were acquired
by cash or by debt, does not exceed Two Hundred Fifty Thousand Dollars
($250,000.00); and (z) the assets acquired shall become Collateral hereunder.
7.4 Indebtedness. Create, incur, assume, or be liable for any
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Indebtedness, or permit any Subsidiary to do so, other than Permitted
Indebtedness.
7.5 Encumbrance. Create, incur, or allow any Lien on any of its property,
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or assign or convey any right to receive income, including the sale of any
Accounts, or permit any of its Subsidiaries to do so, except for Permitted
Liens, or permit any Collateral not to be subject to Bank's first priority
security interest in the Collateral subject only to Permitted Liens.
7.6 Investments; Distributions. Directly or indirectly acquire or own any
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Person, or make any Investment in any Person, other than Permitted Investments,
or permit any of its Subsidiaries to do so.
7.7 Transactions with Affiliates. Directly or indirectly enter or permit
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any material transaction with any Affiliate, except transactions that are in the
ordinary course of Borrower's business, on terms no less favorable to Borrower
than would be obtained in an arm's length transaction with a non-affiliated
Person.
7.8 Compliance. Undertake as one of its important activities extending
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credit to purchase or carry margin stock, or use the proceeds of any Advance for
that purpose; fail to meet the minimum funding requirements of ERISA, permit a
Reportable Event or Prohibited Transaction, as defined in ERISA, to occur; fail
to comply with the Federal Fair Labor Standards Act or violate any other law or
regulation, if the violation could reasonably be expected to have a material
adverse effect on Borrower's business or operations or cause a Material Adverse
Change, or permit any of its Subsidiaries to do so.
8 EVENTS OF DEFAULT
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Any one of the following is an Event of Default:
8.1 Payment Default. Borrower fails to pay any of the Obligations and
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does not cure the same within three (3) days after their due date. During the
additional period the failure to cure the default is not an Event of Default
(but no Credit Extensions shall be made during the cure period);
8.2 Covenant Default. Borrower does not perform any obligation in Section
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6 or violates any covenant in Section 7 or does not perform or observe any other
material term, condition or covenant in this Agreement, any Loan Documents, or
in any agreement between Borrower and Bank and as to any default under a term,
condition or covenant that can be cured, has not cured the default within ten
(10) days after it occurs, or if the default cannot be cured within ten (10)
days or cannot be cured after Borrower's attempts in the ten (10) day period,
and the default may be cured within a reasonable time, then Borrower shall have
additional time, (of not more than thirty (30) days) to attempt to cure the
default. During the additional period the failure to cure the default is not an
Event of Default (but no Credit Extensions shall be made during the cure
period);
8.3 Material Adverse Change. A Material Adverse Change occurs;
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8.4 Attachment. (i) Any material portion of Borrower's assets is
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attached, seized, levied on, or comes into possession of a trustee or receiver
and the attachment, seizure or levy is not removed in thirty (30) days; (ii)
Borrower is enjoined, restrained, or prevented by court order from conducting a
material part of its business; (iii) a judgment or other claim becomes a Lien on
a material portion of Borrower's assets; or (iv) a notice of lien, levy, or
assessment is filed against any of Borrower's assets by any government agency
and not paid within ten (10) days after
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Borrower receives notice. These are not Events of Default if stayed, paid, or if
a bond is posted pending contest by Borrower (but no Credit Extensions shall be
made during the cure period);
8.5 Insolvency. (i) Borrower becomes insolvent; (ii) Borrower begins an
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Insolvency Proceeding; or (iii) an Insolvency Proceeding is begun against
Borrower and not dismissed or stayed within forty-five (45) days (but no Credit
Extensions shall be make before any Insolvency Proceeding is dismissed);
8.6 Other Agreements. If there is a default in any agreement to which
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Borrower is a party with a third party or parties resulting in a right by such
third party or parties, whether or not exercised, to accelerate the maturity of
any Indebtedness (which Indebtedness is equal to or exceeds Two Hundred Fifth
Thousand ($250,000.00)) is likely to cause a Material Adverse Change;
8.7 Judgments. If a judgment or judgments not covered by insurance
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(exclusive of the deductible) for the payment of money in an amount,
individually or in the aggregate, of at least Two Hundred Fifty Thousand Dollars
($250,000.00) shall be rendered against Borrower and shall remain unsatisfied
and unstayed for a period of thirty (30) days (provided that no Credit
Extensions will be made prior to the satisfaction or stay of such judgment);
8.8 Misrepresentations. If Borrower or any Person acting for Borrower
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makes any material misrepresentation or material misstatement now or later in
any warranty or representation in this Agreement or in any communication
delivered to Bank or to induce Bank to enter this Agreement or any Loan
Document.
8.9 Guaranty. Any guaranty of any Obligations ceases for any reason to be
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in full force or any Guarantor does not perform any obligation under any
guaranty of the Obligations, or any material misrepresentation or material
misstatement exists now or later in any warranty or representation in any
guaranty of the Obligations or in any certificate delivered to Bank in
connection with the guaranty, or any circumstance described in Section (S).4,
8.5 occurs to any guarantor (except that with respect to Section 8.7, the amount
shall be modified to One Million Dollars ($1,000,000.00)).
9 BANK'S RIGHTS AND REMEDIES
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9.1 Rights and Remedies. When an Event of Default occurs and continues
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Bank may, without notice or demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an
Event of Default described in Section 8.5 occurs all Obligations are
immediately due and payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's benefit
under this Agreement or under any other agreement between Borrower and
Bank;
(c) Settle or adjust disputes and claims directly with account
debtors for amounts, on terms and in any order that Bank considers
advisable;
(d) Make any payments and do any acts it considers necessary or
reasonable to protect its security interest in the Collateral. Borrower
shall assemble the Collateral if Bank requests and make it available as
Bank designates. Bank may enter premises where the Collateral is located,
take and maintain possession of any part of the Collateral, and pay,
purchase, contest, or compromise any Lien which appears to be prior or
superior to its security interest and pay all expenses incurred. Borrower
grants Bank a license to enter and occupy any of its premises, without
charge, to exercise any of Bank's rights or remedies;
(e) Apply to the Obligations any (i) balances and deposits of
Borrower it holds, or (ii) any amount held by Bank owing to or for the
Credit or the account of Borrower;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare
for sale, advertise for sale, and sell the Collateral; and
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(g) Dispose of the Collateral according to the Code.
Notwithstanding anything to the contrary, so long as the Guaranty is in
full force and effect and no violation of the covenants has occurred thereunder,
the existence of any Event of Default prior to the earlier of a draw under the
Letter of Credit or the expiration of the Letter of Credit, shall not result,
except where the Borrower fails to comply with the financial reporting covenants
contained in Section 6.2 hereof, in the exercising of any rights or the
enforcement of any of Bank's remedies hereunder; provided further than in the
event of any such draw, the Obligations may only be accelerated in an amount
equal to the amount of such draw plus Bank's reasonable expenses incurred in
connection with the collection of said amount.
9.2 Power of Attorney. Borrower hereby irrevocably appoints Bank as its
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lawful attorney-in-fact, to be effective upon the occurrence and during the
continuance of an Event of Default, to: (i) endorse Borrower's name on any
checks or other forms of payment or security; (ii) sign Borrower's name on any
invoice or ▇▇▇▇ of lading for any Account or drafts against account debtors;
(iii) settle and adjust disputes and claims about the Accounts directly with
account debtors, for amounts and on terms Bank determines reasonable; (iv) make,
settle, and adjust all claims under Borrower's insurance policies; and (v)
transfer the Collateral into the name of Bank or a third party as the Code
permits. Borrower hereby appoints Bank its power of attorney to sign Borrower's
name on any documents necessary to perfect or continue the perfection of any
security interest regardless of whether an Event of Default has occurred until
all Obligations have been satisfied in full and Bank is under no further
obligation to make Credit Extensions hereunder. Bank's foregoing appointment as
Borrower's attorney in fact, and all of Bank's rights and powers, coupled with
an interest, are irrevocable until all Obligations have been fully repaid and
performed and Bank's obligation to provide Credit Extensions terminates.
9.3 Accounts Collection. When an Event of Default occurs and continues,
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Bank may notify any Person owing Borrower money of Bank's security interest in
the funds and verify the amount of the Account. Borrower must collect all
payments in trust for Bank and, if requested by Bank, immediately deliver the
payments to Bank in the form received from the account debtor, with proper
endorsements for deposit.
9.4 Bank Expenses. If Borrower fails to obtain insurance as required
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under Section 6.5 or to pay any amount or furnish any required proof of payment
to third persons and the Bank, Bank may make all or part of the payment or
obtain such insurance policies required in Section 6.5, and take any action
under the policies Bank deems prudent. Any amounts paid by Bank as provided
herein are Bank Expenses and are immediately due and payable, bearing interest
at the then applicable rate and secured by the Collateral. No payments by Bank
are deemed an agreement to make similar payments in the future or Bank's waiver
of any Event of Default.
9.5 Bank's Liability for Collateral. So long as the Bank complies with
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reasonable banking practices regarding the safekeeping of collateral, the Bank
shall not be liable or responsible for: (a) the safekeeping of the Collateral;
(b) any loss or damage to the Collateral; (c) any diminution in the value of the
Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or
other person. Borrower bears all risk of loss, damage or destruction of the
Collateral.
9.6 Remedies Cumulative. Bank's rights and remedies under this Agreement,
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the Loan Documents, and all other agreements are cumulative. Bank has all rights
and remedies provided under the Code, by law, or in equity. Bank's exercise of
one right or remedy is not an election, and Bank's waiver of any Event of
Default is not a continuing waiver. Bank's delay is not a waiver, election, or
acquiescence. No waiver is effective unless signed by Bank and then is only
effective for the specific instance and purpose for which it was given.
9.7 Demand Waiver. Except for the cure periods provided in Sections 8.1
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and 8.2 hereof, Borrower waives demand, notice of default or dishonor, notice of
payment and nonpayment, notice of any default, nonpayment at maturity, release,
compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guaranties held by Bank on which Borrower is
liable.
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10 NOTICES
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All notices or demands by any party to this Agreement or any other related
agreement must be in writing and be personally delivered or sent by an overnight
delivery service, by certified mail, postage prepaid, return receipt requested,
or by telefacsimile at the addresses listed at the beginning of this Agreement.
Notices shall be deemed given when received or refused. Either Bank or Borrower
may change its notice address by giving the other written notice.
If to Borrower: CKG ▇▇▇▇▇.▇▇▇, Inc. d/b/a Phase 2 Media
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇, ▇▇▇▇ & Brandeis, LLP
Attorneys at Law
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
If to Bank: Silicon Valley Bank
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
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Massachusetts law governs the Loan Documents without regard to principles
of conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction
of the State and Federal courts in Suffolk County, Massachusetts; provided,
however, that if for any reason Bank cannot avail itself of such courts in the
Commonwealth of Massachusetts, Borrower accepts jurisdictions of the courts and
venue in Santa ▇▇▇▇▇ County, California.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY
CONTEMPLATED TRANSACTION, 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.
12 GENERAL PROVISIONS
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12.1 Successors and Assigns. This Agreement binds and is for the benefit
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of the successors and permitted assigns of each party. Borrower may not assign
this Agreement or any rights or Obligations under it without Bank's prior
written consent which may be granted or withheld in Bank's discretion unless
such assignment is pursuant to a merger or consolidation permitted under Section
7.3 hereof. Bank has the right, without the consent of or prior notice to
Borrower, but with reasonable subsequent notice to Borrower, to sell, transfer,
negotiate, or grant participation in all
8
or any part of, or any interest in, Bank's obligations, rights and benefits
under this Agreement, the Loan Documents or any related agreement.
12.2 Indemnification. Borrower hereby indemnifies, defends and holds the
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Bank and its officers, employees and agents harmless against: (a) all
obligations, demands, claims, and liabilities asserted by any other party in
connection with the transactions contemplated by the Loan Documents; and (b) all
losses or Bank Expenses incurred, or paid by Bank from or following transactions
between Bank and Borrower (including reasonable attorneys' fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
12.3 Time of Essence. Time is of the essence for the performance of all
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Obligations in this Agreement.
12.4 Severability of Provision. Each provision of this Agreement is
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severable from every other provision in determining the enforceability of any
provision.
12.5 Amendments in Writing, Integration. All amendments to this Agreement
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must be in writing signed by both Bank and Borrower. This Agreement and the Loan
Documents represent the entire agreement about this subject matter, and
supersedes prior or contemporaneous negotiations or agreements. All prior or
contemporaneous agreements, understandings, representations, warranties, and
negotiations between the parties about the subject matter of this Agreement and
the Loan Documents merge into this Agreement and the Loan Documents.
12.6 Counterparts. This Agreement may be executed in any number of
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counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, are an original, and all taken together, are one
Agreement.
12.7 Survival. All covenants, representations and warranties made in this
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Agreement continue in full force while any Obligations remain outstanding. The
obligations of Borrower in Section 12.2 to indemnify Bank shall survive until
all statutes of limitations for actions that may be brought against Bank have
run.
12.8 Confidentiality. In handling any confidential information, Bank shall
---------------
exercise the same degree of care that it exercises for its own proprietary
information, but disclosure of information may be made: (i) to Bank's
subsidiaries or affiliates in connection with their present or prospective
business relations with Borrower; (ii) to prospective transferees or purchasers
of any interest in the Loans; (iii) as required by law, regulation, subpoena, or
other order, (iv) as required in connection with Bank's examination or audit;
and (v) as Bank considers appropriate in exercising remedies under this
Agreement. Confidential information does not include information that either:
(a) is in the public domain or in Bank's possession when disclosed to Bank, or
becomes part of the public domain after disclosure to Bank; or (b) is disclosed
to Bank by a third party, if Bank does not know that the third party is
prohibited from disclosing the information.
12.9 Attorneys' Fees, Costs and Expenses. In any action or proceeding
-----------------------------------
between Borrower and Bank arising out of the Loan Documents, the prevailing
party shall be entitled to recover its reasonable attorneys' fees and other
costs and expenses incurred, in addition to any other relief to which it may be
entitled, whether or not a lawsuit is filed.
13 DEFINITIONS
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13.1 Definitions.
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"Accounts" are all existing and later arising accounts, contract rights,
and other obligations owed Borrower in connection with its sale or lease of
goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
9
"Affiliate" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"Bank Expenses" are all expenses and reasonable costs or expenses
(including reasonable attorneys' fees and expenses) for preparing, negotiating,
administering, defending and enforcing the Loan Documents (including appeals or
Insolvency Proceedings) and audit fees incurred after the occurrence of an Event
of Default.
"Borrower's Books" are all Borrower's books and records including ledgers,
records regarding Borrower's assets or liabilities, the Collateral, business
operations or financial condition and all computer programs or discs or any
equipment containing the information.
"Business Acquisition" is defined in Section 7.3.
"Business Day" is any day that is not a Saturday, Sunday or a day on which
the Bank is closed.
"Closing Date" is the date of this Agreement.
"Code" is the Massachusetts Uniform Commercial Code.
"Collateral" is the property described on Exhibit A.
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"Contingent Obligation" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (ii) any obligations for undrawn letters of credit for the account of
that Person; and (iii) all obligations from any interest rate, currency or
commodity swap agreement, interest rate cap or collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but "Contingent
Obligation" does not include endorsements in the ordinary course of business.
The amount of a Contingent Obligation is the stated or determined amount of the
primary obligation for which the Contingent Obligation is made or, if not
determinable, the maximum reasonably anticipated liability for it determined by
the Person in good faith; but the amount may not exceed the maximum of the
obligations under the guarantee or other support arrangement.
"Credit Extension" is the Letter of Credit or any other extension of credit
by Bank for Borrower's benefit.
"Equipment" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which Borrower has any interest.
"ERISA" is the Employment Retirement Income Security Act of 1974, and its
regulations.
"GAAP" is generally accepted accounting principles.
"Guarantor" is any present or future guarantor of the Obligations,
including Vector Capital II, L.P.
"Indebtedness" is (a) indebtedness for borrowed money or the deferred price
of property or services, such as reimbursement and other obligations for surety
bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
"Insolvency Proceeding" is any proceeding by or against any Person under
the United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
10
"Inventory" is present and future inventory in which Borrower has any
interest, including merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products intended for sale or
lease or to be furnished under a contract of service, of every kind and
description now or later owned by or in the custody or possession, actual or
constructive, or Borrower, including inventory temporarily out of its custody or
possession or in transit and including returns on any accounts or other proceeds
(including insurance proceeds) from the sale or disposition of any of the
foregoing and any documents of title.
"Investment" is any beneficial ownership of (including stock, partnership
interest or other securities) any Person, or any loan, advance or capital
contribution to any Person.
"Letter of Credit" means a letter of credit or similar undertaking issued
by Bank pursuant to Section 2.1.1.
"Lien" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"Loan Documents" are, collectively, this Agreement, any note, or notes or
guaranties executed by Borrower or Guarantor, and any other present or future
agreement between Borrower and/or for the benefit of Bank in connection with
this Agreement, all as amended, extended or restated.
"Material Adverse Change" is: a material impairment in the perfection or
priority of Bank's security interest in a material portion of the Collateral or
in the value of such Collateral other than normal depreciation which is not
covered by adequate insurance occurs.
"Maturity Date" is one day prior to the one-year anniversary of the Closing
Date.
"Obligations" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including letters of credit, if any,
and including interest accruing after Insolvency Proceedings begin and debts,
liabilities, or obligations of Borrower assigned to Bank.
"Permitted Indebtedness" is:
(a) Borrower's indebtedness to Bank under this Agreement or the Loan
Documents;
(b) Indebtedness existing on the Closing Date and shown on the
Schedule;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors incurred in the ordinary course
of business; and
(e) Indebtedness secured by Permitted Liens;
(f) Indebtedness to Vector Capital II, L.P. relating to the
Guaranty;
(g) Indebtedness to any Affiliate;
(h) rental obligations for leases and subleases of real property;
(i) Contingent Obligations arising out of endorsements of checks and
other negotiable instruments for deposit or collection in the ordinary
course of business;
(j) Indebtedness incurred in connection with a permitted Business
Acquisition;
(k) Indebtedness not otherwise included in paragraphs (a)-(j) which
does not at any time exceed the sum of Two Hundred Fifty Thousand Dollars
($250,000.00).
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"Permitted Investments" are:
(a) Investments shown on the Schedule and existing on the Closing Date;
(b) (i) deposit accounts maintained by Borrower; (ii) investments
(including debt and equity) received in connection with the bankruptcy or
reorganization of suppliers and customers in settlement of delinquent
obligations;
(c) (i) marketable direct obligations issued or unconditionally
guaranteed by the United States or its agency or any State maturing within 1
year from its acquisition, (ii) commercial paper maturing no more than 1 year
after its creation and having the highest rating from either Standard & Poor's
Corporation or ▇▇▇▇▇'▇ Investors Service, Inc., and (iii) certificates of
deposit issued by a nationally recognized bank maturing no more than 1 year
after issue;
(d) Business Acquisitions permitted hereunder and other acquisitions of
another entity's capital stock or assets to the extent not otherwise expressly
prohibited herein; and
(e) advances and loans to employees and officers in the ordinary course
of business.
"Permitted Liens" are:
(a) Liens existing on the Closing Date and shown on the Schedule or
arising under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or
levies, either not delinquent or being contested in good faith and for which
Borrower maintains adequate reserves on its Books, if they have no priority over
any of Bank's secured interests or if additional Collateral acceptable to Bank
has been granted to Bank;
(c) Purchase money Liens (i) on Equipment acquired or held by Borrower
or its Subsidiaries incurred for financing the acquisition of the Equipment, or
(ii) existing on equipment when acquired, if the Lien is confined to the
--
property and improvements and the proceeds of the equipment, including insurance
proceeds on a casualty thereof;
(d) Leases or subleases and licenses or sublicenses granted in the
ordinary course of Borrower's business (wherein Borrower is the lessor,
sublessor or licensor, as the case may be), if the leases, subleases, licenses
--
and sublicenses do not prohibit Borrower from granting Bank a security interest;
(e) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c), but any extension,
---
renewal or replacement Lien must be limited to the property encumbered by the
existing Lien and the principal amount of the indebtedness may not violate the
Permitted Indebtedness covenant;
(f) pledges or deposits in connection with the Worker's Compensation,
unemployment insurance and other Social Security legislation;
(g) easements, rights of ways, restrictions and covenants, provided some
do not materially impair value or use of asset;
(h) Liens in connection with judgment, subject to the cap otherwise
provided herein;
(i) landlord's lien's; and
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(j) mechanics and materialsmen liens, provided same are legally
contested and Borrower sets aside adequate reserves.
"Person" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or government agency.
"Responsible Officer" is each of the Chairman, Chief Executive Officer,
President, Chief Financial Officer and Controller.
"Schedule" is any attached schedule of exceptions.
"Subordinated Debt" is debt incurred by Borrower subordinated to Borrower's
debt to Bank (pursuant to a subordination agreement entered into between the
Bank, the Borrower and the subordinated creditor).
"Subsidiary" is for any Person, joint venture, or any other business entity
of which more than 50% of the voting stock or other equity interests is owned or
controlled, directly or indirectly, by the Person or one or more Affiliates of
the Person.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a scaled instrument under the laws of the Commonwealth of
Massachusetts as of the date first above written.
BORROWER:
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CKG ▇▇▇▇▇.▇▇▇, INC.
d/b/a PHASE 2 MEDIA
By /s/ ▇▇▇▇▇▇ ▇. [illegible]
----------------------------
Name: ▇▇▇▇▇▇ ▇. [illegible]
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Title: President & CEO
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BANK:
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SILICON VALLEY BANK, d/b/a
SILICON VALLEY EAST
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Title: Vice President
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13
SILICON VALLEY BANK
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: Assistant Vice President
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(Signed in Santa ▇▇▇▇▇ County, California)
14
EXHIBIT A
The Collateral consists of all right, title and interest of Borrower in and
to the following:
All goods, equipment, inventory, contract rights (to the extent a security
interest may be obtained), general intangibles, accounts, documents,
instruments, chattel paper, cash, deposit accounts, fixtures, letters of credit,
investment property, and financial assets, whether now owned or hereafter
acquired, wherever located; and
All Borrower's Books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions,
attachments, accessories, accessions and improvements to and replacements,
products, proceeds and insurance proceeds of any or all of the foregoing.
The Collateral does not include:
Any copyright rights, copyright applications, copyright registrations and like
protections in each work of authorship and derivative work, whether published or
unpublished, now owned or later acquired; any patents, trademarks, service marks
and applications therefor; any trade secret rights, including any rights to
unpatented inventions, know-how, operating manuals, license rights and
agreements and confidential information, now owned or hereafter acquired; or any
claims for damages by way of any past, present and future infringement of any of
the foregoing.
15
Schedule of Permitted Liens
Lien relating to lease of copier from Canon Financial Services, Inc.
Lien taken by Vector Capital II, L.P. as Collateral Agent