Intercreditor and Subordination Agreement, dated April 12, 2021, by and between First Foundation Bank, Skywords Family Foundation, Inc. and Cyanotech Corporation

Exhibit 10.2

INTERCREDITOR AND SUBORDINATION AGREEMENT

THIS INTERCREDITOR AND SUBORDINATION AGREEMENT (this “Agreement”), is entered into as of April 12, 2021 (the “Effective Date”), by and between FIRST FOUNDATION BANK, a California corporation (“Senior Creditor”), SKYWORDS FAMILY FOUNDATION INC. ( “Subordinated Creditor”) and CYANOTECH CORPORATION, a Nevada corporation (“Cyanotech” or “Borrower”). Capitalized terms used but not otherwise defined herein shall have the meanings given them in Section 1(a) below.

RECITALS

A.         Borrower is indebted to Senior Creditor pursuant to (i) that certain Term Loan Agreement, dated as of August 14, 2012, by and between Senior Creditor (as successor in interest to Pacific Rim Bank), Cyanotech and Nutrex Hawaii, Inc., a Hawaii corporation (“Nutrex”) (as amended, modified, restated, replaced or supplemented from time to time, the “First Term Loan Agreement”), (ii) that certain Term Loan Agreement, dated as of July 30, 2015, between Senior Creditor, Cyanotech and Nutrex (as amended, modified, restated, replaced or supplemented from time to time, the “Second Term Loan Agreement”) and (iii) that certain Revolving Credit Agreement, dated as of June 3, 2016, between Senior Creditor and Cyanotech (as amended, modified, restated, replaced or supplemented from time to time, the “Revolving Agreement” and together with the First Term Loan Agreement and the Second Term Loan Agreement, the “Senior Creditor Agreements”). The funds advanced to or owed by Borrower under the Senior Creditor Agreements shall be referred to collectively herein as the “Senior Loans.” To secure the Senior Loans, Borrower granted to Senior Creditor a security interest in substantially all of its personal property assets.

B.         Borrower is indebted to Subordinated Creditor pursuant to the Subordinated Loan Documents, originally executed and delivered as of April 12, 2019.

C.         Borrower and Subordinated Creditor have agreed to amend and restate (without novation) the Subordinated Loan Documents as of the Effective Date, which amendment and restatement shall provide, among other things, for a conversion of $500,000.00 of the Subordinated Debt into revolving loans on such date, the repayment by Borrower of $500,000.00 of revolving loans to Subordinated Creditor on such date, and a grant by Borrower of a security interest in substantially all of its personal property assets to Subordinated Creditor to secure the Subordinated Debt.

D.         In connection with such amendment and restatement of the Subordinated Loan Documents, Borrower, Senior Creditor and Subordinated Creditor desire to agree to and to set forth their respective rights, priorities and interests governing their respective relationships with Borrower and the 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 Borrower’s and Subordinated Creditor’s entering into the Subordinated Loan Documents, Subordinated Creditor and Senior Creditor hereby agree as follows:

(a)    DEFINITIONS. As used herein, the following terms shall have the following meanings:

“Senior Debt” means any and all indebtedness and obligations for borrowed money (including, without limitation, principal, premium (if any), interest, fees, charges, expenses, costs, professional fees and expenses, and reimbursement obligations) at any time owing by Borrower to Senior Creditor under the Senior Loan Documents (including, without limitation, 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 Borrower, the principal amount of which, excluding the principal amount of any DIP Financing (as defined below)), which shall in no event exceed the Senior Debt Cap.

“Senior Debt Cap” means principal indebtedness under the Senior Creditor Agreements in an amount outstanding at any time of up to Seven Million Eight Hundred Seventy Five Thousand Six Hundred Dollars ($7,875,600.00); provided that (a) the Senior Debt Cap with respect to the First Term Loan Agreement shall be an amount outstanding at any time of up to Four Million Seven Hundred Thirteen Thousand Six Hundred Dollars ($4,713,600.00), (b) the Senior Debt Cap with respect to the Second Term Loan Agreement shall be an amount outstanding of up to Seven Hundred Sixty Two Thousand Dollars ($762,000.00) and (c) the Senior Debt Cap with respect to the Revolving Credit Agreement shall be an amount outstanding of up to Two Million Four Hundred Thousand Dollars ($2,400,000.00).

“Senior Loan Documents” means each of the Senior Creditor Agreements and any other agreement, security agreement, document, promissory note, UCC financing statement, or instrument executed by Borrower in favor of Senior Creditor in connection with the Senior Creditor Agreements, as the same may from time to time be amended, modified, supplemented, extended, renewed, restated or replaced.

“Subordinated Debt” means any and all indebtedness and obligations for borrowed money (including, without limitation, principal, premium (if any), interest, fees, charges, expenses, costs, professional fees and expenses, and reimbursement obligations) at any time owing by Borrower to Subordinated Creditor under the Subordinated Loan Documents (including, without limitation, 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 Borrower).

“Subordinated Loan Documents” means that certain Promissory Note, dated as of April 12, 2019, as amended and restated by the Amended and Restated Promissory Note, dated as of April 12, 2021, issued by Borrower in favor of Subordinated Creditor, and any other agreement, document, promissory note, financing statement, or instrument executed by Borrower in favor of Subordinated Creditor pursuant to or in connection with the Subordinated Debt, in each case 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. The capitalized term “Collateral” as used in this Agreement has the meaning ascribed to such term in the Senior Loan Documents. 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 (“UCC”).

(a)    On the terms and conditions set forth below, Subordinated Creditor’s right to payment and performance of the Subordinated Debt and all liens and security interests securing the Subordinated Debt are hereby subordinated to Senior Creditor’s right to full 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, sue for, take or receive from Borrower, by setoff or in any other manner, the whole or any part of any monies which may now or hereafter be owing by Borrower to Subordinated Creditor, or be owing by any other person or entity 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 Agreements shall have been terminated (the temporary reduction of outstanding obligations, liabilities and indebtedness of Borrower 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 Borrower, other than the security interests and liens granted in favor of Subordinated Creditor in certain of Borrower’s personal property under and as described in the Subordinated Loan Documents, which liens and security interests are 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 (including, without limitation, the security interests granted in favor of Subordinated Creditor pursuant to the Subordinated Loan Documents), whether by operation of law or otherwise, and may from time to time exist in favor of Subordinated Creditor in or on any property of Borrower to secure all or any portion of the Subordinated Debt, then any liens granted by Borrower in favor of Senior Creditor to secure the Senior Debt shall in all respects be first and senior liens, superior to any liens in favor of Subordinated Creditor securing the Subordinated Debt, including, without limitation, the security interests granted in favor of Subordinated Creditor pursuant to the Subordinated Loan Documents notwithstanding (i) the date, manner or order of perfection of the security interests and liens granted in favor of Senior Creditor, (ii) the provisions of the UCC or any other applicable laws or decisions, (iii) the provisions of any contract in effect between Senior Creditor, on the one hand, and Borrower or any affiliate thereof, on the other, and (iv) whether Senior Creditor or any agent or bailee thereof holds possession of any part or all of the Collateral. In the event Subordinated Creditor has or obtains possession of any such property or forecloses upon or enforces its lien upon any such property, whether by judicial action or otherwise, then all such property shall be immediately delivered in kind to Senior Creditor or, if not deliverable in kind, all cash or non‑cash proceeds and profits of such property shall be held in trust for the benefit of Senior Creditor and paid over to Senior Creditor, without any deduction or offset, 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 Agreements 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 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.

(d)    Notwithstanding anything in this Agreement to the contrary, nothing herein shall be deemed to subordinate, waive or restrict the contractual rights of Subordinated Creditor under any warrants or capital stock that Borrower may issue to Subordinated Creditor from time to time, nor shall anything herein restrict the performance of Borrower’s obligations under such warrants or with respect to such capital stock.

(e)    In the event of the occurrence of an Insolvency Event (as hereinafter defined), (i) this Agreement shall remain in full force and effect in accordance with Section 510(a) of the United States Bankruptcy Code, and (ii) the Collateral shall include, without limitation, all Collateral arising during or after any such Insolvency Event.

(a)    Notwithstanding anything to the contrary contained in Section 2, but subject expressly to Section 3(b), Borrower shall be permitted to make, and Subordinated Creditor shall be permitted to ask, demand, sue for, take or receive from Borrower, by setoff or in any other manner, the following permitted payments (“Permitted Payments”): (i) prepayments of non-accelerated principal (together with non-default accrued but unpaid interest thereon) under the Subordinated Loan Documents; (ii) scheduled repayments of non‑accelerated principal when due under the Subordinated Loan Documents; (iii) scheduled payments of non‑default accrued interest when due under the Subordinated Loan Documents; (iv) payments of interest by payment-in-kind, adding to the principal balance of the Subordinated Loan Documents or otherwise on an accretion basis; (v) payments of reimbursable expenses, costs and professional fees and expenses as and when due under the Subordinated Loan Documents; and (vi) other payments consented to in writing by Senior Creditor.

(b)    Notwithstanding anything to the contrary contained in this Section 3 or elsewhere in this Agreement, if Senior Creditor delivers to Subordinated Creditor written notice (a “Blockage Notice”) which states that there has been an event of default under the Senior Loan Documents that has not been cured then, during any Blockage Period (as defined below), Subordinated Creditor shall not accept or receive any payment of any kind of or on account of the Subordinated Debt (including any Permitted Payment), unless and until the earlier of (A) the time Senior Creditor notifies Subordinated Creditor in writing that the event of default by Borrower has been cured by Borrower or waived by Senior Creditor, or (B) the expiration of the Blockage Period for such Blockage Notice. Additionally, Subordinated Creditor shall disgorge any Permitted Payments received during the shorter of either (1) the period commencing upon the occurrence of an event of default under the Senior Loan Documents until the date of receipt by Subordinated Creditor of such Blockage Notice, or (2) the one month period immediately prior to the date of receipt by Subordinated Creditor of such Blockage Notice; provided, that Subordinated Creditor may accept and retain any distribution to Borrower’s unsecured creditors constituting the proceeds of Borrower’s assets that are not otherwise subject to Senior Creditor’s security interest or lien.

As used herein, “Blockage Period” means a period of time beginning on the date a Blockage Notice is delivered to Subordinated Creditor and terminating on the earlier to occur of:

(1)    90 days following such date; provided that if, prior to the expiration of such 90‑day period, Senior Creditor has commenced a judicial proceeding or non‑judicial actions to collect or enforce the Senior Debt or foreclose on any Collateral for the Senior Debt, or a case or proceeding by or against Borrower is commenced under the United States Bankruptcy Code or any other insolvency law, then such period shall be extended during the continuation of such proceedings and actions until the payment in cash in full of the Senior Debt; or

(2)    the written consent of Senior Creditor to such termination.

Senior Creditor shall not issue more than two (2) Blockage Notices in the aggregate for any and all events of default which do not involve a failure to make a payment of Senior Debt in any period of 365 consecutive days.

Notwithstanding anything to the contrary contained in Section 2, Subordinated Creditor’s rights to enforce any claim (including any default remedy) with respect to the Subordinated Debt or the collateral for the Subordinated Debt, or otherwise to take any action against Borrower or Borrower’s property with respect to the Subordinated Debt shall be subject to any Blockage Notice given pursuant to Section 3(b); provided, however, notwithstanding the foregoing, Subordinated Creditor may take any of the following actions: (a) file claims upon the occurrence of an Insolvency Event (as defined in Section 6 below) pursuant to the terms of Section 6(b); (b) accelerate the maturity of, or demand as immediately due and payable, all or any portion of the Subordinated Debt; (c) impose any default rate of interest in accordance with the Subordinated Loan Documents; or (d) deliver any notice of exclusive control with respect to any deposit, operating, securities or investment accounts of Borrower provided that Subordinated Creditor shall not exercise any rights with respect to such accounts in violation of the terms of this Agreement including, without limitation, withdrawing, disposing or otherwise instructing any person or entity to post for the account of Subordinated Creditor any cash, funds, securities, entitlements or other property or rights in such accounts or any proceeds thereof.

Subordinated Creditor hereby covenants to Senior Creditor that prior to the termination of this Agreement in accordance with Section 11, 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, the 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 made expressly subject to this Agreement. Any promissory note issued pursuant to the Subordinated Loan Agreement shall include the following legend: THIS NOTE, THE RIGHTS, INDEBTEDNESS AND OBLIGATIONS EVIDENCED HEREBY, AND THE RIGHTS OF LENDER HEREOF ARE SUBORDINATE, INFERIOR AND SUBJECT TO THE RIGHTS OF THE SENIOR CREDITOR IN RESPECT OF ANY SENIOR INDEBTEDNESS IN THE MANNER SET FORTH IN THE INTERCREDITOR AND SUBORDINATION AGREEMENT. EACH HOLDER OR TRANSFEREE OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THIS NOTE AND THE INTERCREDITOR AND SUBORDINATION AGREEMENT AS A HOLDER OF SUBORDINATED INDEBTEDNESS, AS SET FORTH IN THE INTERCREDITOR AND SUBORDINATION AGREEMENT.

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 Borrower or the proceeds thereof to the creditors of Borrower, or the readjustment of the Senior Debt and the Subordinated Debt of Borrower, 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 Borrower to the payment or liquidation thereof, or upon the dissolution, liquidation, reorganization, or other winding up of Borrower’s business, or upon the sale of all or any substantial part of Borrower’s 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 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 Creditor in trust for and shall be promptly 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.

In the event of the occurrence of an Insolvency Event, and in order 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, sue for, collect and receive every payment or distribution referred to in Section 6, and give acquittance therefor, (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 payment in cash of the Senior Debt, Senior Creditor shall remit to 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.

In addition to and without limiting the provisions of Section 7:

(a)    Until the Senior Debt has been fully paid in cash and Senior Creditor’s agreements to lend any funds to Borrower have been terminated, Subordinated Creditor shall not commence or join in any involuntary bankruptcy petition or similar judicial proceeding against Borrower.

(b)    If an Insolvency Event occurs:

(i)    Subordinated Creditor shall not assert, without the prior written consent of Senior Creditor, any claim, motion, objection or argument in respect of the Collateral in connection with any Insolvency Event which could otherwise be asserted or raised in connection with such Insolvency Event, including, without limitation, any claim, motion, objection or argument seeking adequate protection or relief from the automatic stay in respect of the Collateral; provided, that (A) if Senior Creditor is granted adequate protection in the form of additional or replacement Collateral, then Subordinated Creditor may seek or request adequate protection in the form of a lien on such additional or replacement Collateral, which lien will be subordinated to the lien securing the Senior Debt and any DIP Financing provided by Senior Creditor on the same basis as the other liens securing the Subordinated Debt are subordinated to the liens securing the Senior Debt in accordance with the terms of this Agreement and (B) Subordinated Creditor may assert claims, motions, objections or arguments in respect of any proposed DIP Financing if the sum of the then outstanding principal amount of any Senior Debt and such proposed DIP Financing is in excess of the Senior Debt Cap plus Five Hundred Thousand Dollars ($500,000) (the “DIP Financing Cap”);

(ii)    Senior Creditor may consent to the use of cash collateral on such terms and conditions and in such amounts as it shall in good faith determine without seeking or obtaining the consent of Subordinated Creditor as (if applicable) holder of an interest in the Collateral; provided, that (A) Subordinated Creditor otherwise retains its lien on the Collateral (subject to the priorities and other agreements set forth herein), (B) Subordinated Creditor may seek adequate protection as permitted by clause (i) above, (C) after taking into account the use of cash collateral and the principal amount of any DIP Financing on any date, the sum of the then outstanding principal amount of any Senior Debt and any DIP Financing does not exceed the DIP Financing Cap and (D) the interest rate, fees, advance rates, lending limits and sublimits are approved by the bankruptcy court;

(iii)    if use of cash collateral by Borrower is consented to by Senior Creditor, Subordinated Creditor shall not oppose such use of cash collateral on the basis that Subordinated Creditor’s interest in the Collateral (if any) is impaired by such use or inadequately protected by such use, or on any other ground, so long as the conditions in the proviso of clause (ii) above have been satisfied;

(iv)    Subordinated Creditor shall not object to, or oppose, any sale or other disposition of any assets comprising all or part of the Collateral, free and clear of security interests, liens and claims of any party, including Subordinated Creditor, under Section 363 of the United States Bankruptcy Code or otherwise, on the basis that the interest of Subordinated Creditor in the Collateral (if any) is impaired by such sale or inadequately protected as a result of such sale, or on any other ground (and, if requested by Senior Creditor, Subordinated Creditor shall affirmatively and promptly consent to such sale or disposition of such assets), if Senior Creditor has consented to, or supports, such sale or disposition of such assets; provided, that (A) pursuant to court order, the liens of Subordinated Creditor attach to the net proceeds of such sale or other disposition with the same priority and validity as the liens held by Subordinated Creditor on such Collateral, and the liens remain subject to the terms of this Agreement, (B) the proceeds of such sale or other disposition of Collateral received by Senior Creditor are applied to permanently reduce the Senior Debt and the proceeds in excess of those necessary to achieve the payment in full of the Senior Debt are distributed to Subordinated Creditor or if not so applied and distributed, are subject to the rights of Subordinated Creditor to object to any further use and (C) Subordinated Creditor may credit bid on the Collateral in any such sale or other disposition in accordance with section 363(k) of the Bankruptcy Code; provided further that: (y) any such credit bid shall provide for payment in full in cash of all Senior Debt, or (z) Senior Creditor has approved, in writing and in its sole discretion, the terms and conditions of any such credit bid prior to any sale; and

(v)    Each of Senior Creditor and Subordinated Creditor shall, subject to the terms and conditions of this Agreement, be permitted to include in any claim filed in connection with an Insolvency Event any indebtedness, liabilities and obligations of the Borrower regardless of whether such obligations were incurred after the commencement of any proceedings relating to such Insolvency Event, and references to “collateral” in such claims may include without limitation all collateral arising during any such proceedings, and this Agreement shall continue to apply during any such proceedings.

(c)    Notwithstanding the foregoing, (i) in any proceedings related to an Insolvency Event, Subordinated Creditor may take any action to preserve or protect the validity and enforceability of its liens so long as no such action is, or could reasonably be expected to be, (A) adverse to the Senior Creditor’s liens on the Collateral or the rights of the Senior Creditor to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement; (ii) Subordinated Creditor may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person or entity objecting to or otherwise seeking the disallowance of the claims of Subordinated Creditor, including any claims secured by the Collateral, or the avoidance of any liens held by Subordinated Creditor or otherwise make any agreements or file any motions pertaining to the Subordinated Debt, in each case, to the extent not inconsistent with the terms of this Agreement; (iii) Subordinated Creditor may participate in any insolvency proceeding against Borrower as an unsecured creditor; and (iv) Subordinated Creditor may enforce any of its rights and exercise any of its remedies with respect to the Collateral after the termination of the period set forth in Section 3(b); and

(d)    As used herein, “DIP Financing” means the obtaining of credit or incurring debt secured by Liens on the Collateral pursuant to section 364 of the Bankruptcy Code (or similar bankruptcy law).

Should any payment, distribution, or security be received by Subordinated Creditor upon or with respect to the Subordinated Debt (other than Permitted Payments) prior to termination of this Agreement in accordance with Section 11, Subordinated Creditor shall receive and hold the same in trust for the benefit of Senior Creditor and shall forthwith deliver the same to Senior Creditor in precisely the form received (except for the endorsement or assignment of Subordinated Creditor where necessary) for application to the Senior Debt, and, until so delivered, the same shall be held in trust by Subordinated Creditor as the property of Senior Creditor.

Subject to Section 17(b), Subordinated Creditor agrees to cooperate with Senior Creditor and to take all commercially reasonable actions that Senior Creditor may reasonably require to enable Senior Creditor to realize the full benefits of this Agreement.

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 cannot be revoked or amended by Subordinated Creditor, except with the prior written consent of Senior Creditor. Senior Creditor and Subordinated Creditor agree that no amendment hereto shall be binding upon Borrower unless Borrower shall have received notice of such amendment. Subject to Section 15, this Agreement shall automatically terminate without further action by any person immediately upon the date on which both (a) the Senior Debt shall have been paid in cash in full and (b) the Senior Loan Documents shall have been terminated.

(a)    Senior Creditor may administer and manage its credit and other relationships with Borrower 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 Borrower 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 the Senior Creditor shall not (i) increase the principal amount under the Senior Creditor Agreements above the limits set forth in the definition of “Senior Debt”, (ii) permit any term loans that are repaid to be reborrowed, (iii) prohibit or restrict the making of any payments, prepayments, repayments, increases or extensions in respect of Subordinated Debt beyond the prohibitions or restrictions in the Senior Loan Documents as of the Effective Date or (iv) prohibit or restrict the making of any amendments, restatements, supplements, modifications, waivers, consents or changes to the Subordinated Loan Documents that are permitted by this Agreement; and provided further, that neither this Section 12 nor any provision of such agreements shall affect the limitations contained in the definitions of Senior Creditor or Senior Debt. Upon written request, Senior Creditor shall provide Subordinated Creditor with copies of such amendments and/or agreements with Borrower.

(b)    Without limiting the generality of any other covenant or agreement made by Senior Creditor in this Agreement, Senior Creditor hereby covenants and agrees that (i) Senior Creditor shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of Subordinated Creditor’s security interest in the Collateral, or the validity, priority or enforceability of the Subordinated Debt and (ii) Senior Creditor shall endeavor to give Subordinated Creditor prompt written notice of the occurrence of any default or event of default under the Senior Loan Documents, and shall, simultaneously with giving any notice of default to Borrower, provide Subordinated Creditor with a copy of any notice of default given to Borrower; provided, that a failure to provide such notices and such copies shall not be deemed to be a breach of this Agreement.

If cash or other property otherwise payable or deliverable to 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 Agreements 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 Subordinated Creditor by reason of such subrogation shall, as between Borrower and its creditor other than Senior Creditor, on the one hand, and Subordinated Creditor, on the other hand, be deemed to be a payment by Borrower on account of the Subordinated Debt owed to Subordinated Creditor.

(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 Agreements or any of the other Senior Loan Documents, or the collectability of the Senior Debt; (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; (iii) Subordinated Creditor shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of Senior Creditor’s security interest in the Collateral, or the validity, priority or enforceability of the Senior Debt; and (iv) Subordinated Creditor shall give Senior Creditor prompt written notice of the occurrence of any default or event of default under the Subordinated Loan Documents, and shall, simultaneously with giving any notice of default to Borrower, provide Senior Creditor with a copy of any notice of default given to Borrower. Subordinated Creditor acknowledges and agrees that any default or event of default under the Subordinated Loan Documents shall be deemed to be a default and an event of default under the Senior Loan Documents.

To the extent that Senior Creditor receives payments on 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.

Senior Creditor shall not be prejudiced in its rights under this Agreement by any act or failure to act of Borrower or Subordinated Creditor or any noncompliance of Borrower 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 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.

(a)    Subordinated Creditor hereby assumes responsibility for keeping itself informed of the financial condition of Borrower, 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 Subordinated Creditor of information known to Senior Creditor regarding such condition.

(b)    Subject to Sections 2(b), 3, 4, 7, 8 and 9, Subordinated Creditor may (i) administer and manage its credit and other relationships with Borrower in its own best interest and (ii) amend or extend its agreements with Borrower or enter into additional agreements with Borrower, all without the consent of or notice to Senior Creditor; provided that neither this Section 17(b) nor any amendments or additional agreements referred to therein shall impair or affect the subordination of Subordinated Debt or change the definition of Permitted Payments, Subordinated Debt, Subordinated Creditor, Senior Debt or Senior Creditor.

Solely for the purpose of assisting Senior Creditor and/or Subordinated Creditor in perfecting the security interest granted in the collateral of Senior Creditor or Subordinated Creditor securing the Senior Debt or Subordinated Debt, Senior Creditor and Subordinated Creditor each agree to hold any such collateral that is in Senior Creditor’s or Subordinated Creditor’s possession or control as a gratuitous bailee for the other party. Senior Creditor and Subordinated Creditor do not make any representation regarding any perfection or possession or otherwise with respect to any collateral and shall not have any duty or liability to the other party whatsoever arising out of this Section 18.

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: (a) the first business day after transmission by facsimile or hand delivery or deposit with an overnight express service or overnight mail delivery service or (b) 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:

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 such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

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.

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.

Senior Creditor hereby consents to the liens and security interests in the collateral for the Subordinated Debt and the indebtedness created or to be created under Subordinated Loan Agreement and agrees that the grant or existence of such liens and security interests does not and shall not constitute a default or an event of default under or a breach of the Senior Loan Documents or this Agreement. Subordinated Creditor hereby consents to the liens and security interests in the collateral for the Senior Debt and the indebtedness created or to be created under the Senior Creditor Agreements and agrees that the grant or existence of such liens and security interests does not and shall not constitute a default or an event of default under the Subordinated Loan Documents.

TO THE FULLEST 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, THE SENIOR LOAN DOCUMENTS, THE SUBORDINATED 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.

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 Clara 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 Clara 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 Clara 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 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 or 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, foreclose against collateral, or obtain provisional remedies. The private judge shall also determine all issues relating to the applicability, interpretation, and enforceability of this paragraph.

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.

In the event of any legal action to enforce the rights of a party under this Agreement, the party prevailing in such action shall be entitled, in addition to such other relief as may be granted, all reasonable costs and expenses, including reasonable attorneys’ fees, incurred in such action.

[Signature page follows.]

IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written.