Exhibit 10.45
FIRST AMENDMENT TO PLEDGE AGREEMENT
THIS FIRST AMENDMENT TO PLEDGE AGREEMENT is made and entered into
as of January 15, 1999, by and between I-LINK INCORPORATED, a Florida
corporation (the "Pledgor"), and Winter Harbor, L.L.C., a Delaware
limited liability company (the "Pledgee").
RECITALS
A. The Pledgor owns all of the capital stock of I-Link Systems,
Inc., I-Link Communications, Inc., Vianet Technologies, Ltd. and MiBridge,
Inc. and the limited liability company interests of I-Link Worldwide,
L.L.C. (collectively, the "Companies" and individually, a "Company").
B. The Pledgee has lent to the Pledgor (i) $5,768,000 in four
installments on a demand loan basis, which installments were made on
January 26, 1998, February 23, 1998, March 3, 1998, and March 24, 1998
(collectively, the "Original Loans"). The obligations of the Pledgor
under the Original Loans and under the notes and other documents and
instruments entered into in connection therewith are secured by a Pledge
Agreement, dated as of April 14, 1997 (the "Original Pledge Agreement"), entered
into pursuant to the Agreement, dated April 14, 1998 (the "Original Agreement"),
by and between the Pledgee and the Pledgor. All capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to such terms
in the Original Agreement.
C. The Pledgee has further lent to the Pledgor $2,000,000 in three
installments on a demand loan basis, which installments were made on May 13,
1998, May 29, 1998, and June 8, 1998, totaling $2,000,000 (collectively the
"Second Loans") and has made available for borrowing $8,000,000 pursuant to a
Loan Agreement, dated January 15, 1999 (the "Loan Agreement"). The loans made
pursuant to the Loan Agreement, together with the Original Loan and the Second
Loan, may be referred to hereinafter as the "Loans". Each of the Loans is
evidenced by certain promissory notes (the "Notes").
D. In order to induce the Pledgee to enter into the Loan Agreement and to
secure the Second Loans and the Loans made pursuant to the Loan Agreement, the
Pledgor has agreed to enter into this Amendment. The Original Pledge Agreement
as amended hereby shall be referred to as the "Pledge Agreement".
AGREEMENTS
In consideration of the foregoing Recitals, and of the agreements
made herein, and of the Loans made or to be made by the Pledgee to the
Pledgor, the Pledgor and the Pledgee agree as follows:
1. Amendments.
1.1 The Recital of the Original Pledge Agreement is hereby amended
in its entirety to read as follows:
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The Pledgee has lent to the Pledgor (i) $5,768,000 in four
installments on a demand loan basis, which installments were made on
January 26, 1998, February 23, 1998, March 3, 1998, and March 24, 1998
(collectively, the "Original Loans"). The Pledgee has further lent to the
Pledgor $2,000,000 in three installments on a demand loan basis, which
installments were made on May 13, 1998, May 29, 1998, and June 8, 1998,
totaling $2,000,000 (collectively the "Second Loans"), and has made
available for borrowing $8,000,000 pursuant to a Loan Agreement, dated
January 15, 1999 (the "Loan Agreement"). The loans made pursuant to the
Loan Agreement, together with the Original Loan and the Second Loan, may be
referred to hereinafter as the "Loans". Each of the Loans is evidenced by
certain promissory notes (the "Notes"). The Pledgor requested that the
Pledgee not demand payment on the Original Loans before May 15, 1998 (the
"Demand Date"). Pursuant to the Agreement, dated April 14, 1998 (the
"Original Agreement"), the Original Loans automatically came due upon the
Demand Date since the Borrower did not make payment in full of the Original
Loans by that date. The Lender has revoked such demand pursuant to the
terms of an Agreement, dated January 15, 1999 (the "Amended Agreement").
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to them in the Original Agreement. Unless otherwise
set forth herein, references in this Pledge Agreement to the "Agreement"
shall mean the Original Agreement, the Amended Agreement and the Loan
Agreement. As security for the Loans and the Agreement, the Pledgor has
agreed to enter into this Pledge Agreement.
1.2 Section 1(a) of the Original Pledge Agreement is hereby amended
in its entirety to read as follows:
(a) The Pledgor hereby grants to the Pledgee, as security for
the Loans and the obligations of the Pledgor (i) under the
Original Agreement, a first priority perfected security interest
in, and (ii) under the Amended Agreement and the Loan Agreement,
second priority perfected security interest in, and pledges, assigns,
hypothecates and transfers to the Pledgee, all of the Pledgor's
interests in and right and title to, all of the issued and outstanding
shares of capital stock of each of I-Link Systems, Inc., I-Link
Communications, Inc., Vianet Technologies, Ltd. and MiBridge, Inc.
and all of the issued and outstanding limited liability company
interests of I-Link Worldwide, L.L.C. (together, the "Collateral").
1.3 Section 2(a) of the Original Pledge Agreement is hereby
amended in its entirety to read as follows:
(a) the Collateral constitutes all of the capital stock
of each of I-Link Systems, Inc. ("Systems"), I-Link
Communications, Inc. ("Communications"), Vianet Technologies,
Ltd. ("Vianet") and MiBridge, Inc. ("MiBridge") and the limited
liability company interests of I-Link Worldwide, L.L.C.
("Worldwide");
1.4 Section 2(b) of the Original Pledge Agreement is hereby
amended in its entirety to read as follows:
(b) the Collateral is validly issued, fully paid and
nonassessable and is not subject to any liens (except for the
lien of Mr. Drore Nahumi on the capital stock of MiBridge, Inc.),
charges or encumbrances whatsoever, except for the security
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interest granted pursuant hereto;
1.5 Section 2(d) of the Original Pledge Agreement is hereby
amended in its entirety to read as follows:
(d) the execution, delivery and performance of this
Pledge Agreement will not conflict with, result in a breach of
or constitute a default under any indenture or agreement to
which the Pledgor, Systems, Communications, Vianet, MiBridge
or Worldwide is a party or by which any of them is bound, or
result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever on any of their respective
property or assets;
1.6 The last sentence of Section 5 of the Original Pledge
Agreement is hereby amended in its entirety to read as follows:
There likewise shall be pledged to the Pledgee, to be added
to the pledged property and subject to the pledge, any and all
additional issued shares of Systems, Communications, Vianet
and MiBridge and limited liability company interests of
Worldwide to the Pledgor by way of dividend, splits, rights,
new securities or otherwise, to the end that all the issued
and outstanding shares of Systems, Communications, Vianet and
MiBridge and limited liability company interests of Worldwide
will be pledged to Pledgee.
2. Representations and Warranties. Each and every representation
and warranty set forth in the Original Pledge Agreement is hereby confirmed and
ratified, in all material respects, by the Pledgor, and such representations and
warranties as so confirmed and ratified shall be deemed to have been made and
undertaken as of the date of this Amendment as well as at the time they were
made and undertaken except to the extent such representations and warranties
have been affected by events contemplated by or permitted pursuant to the
Agreement.
3. Counterparts. This Amendment may be executed in as many counterparts
as may be convenient and shall become binding when the Pledgor and the Pledgee
have each executed at least one counterpart.
4. Governing Law. This Amendment shall be a contract made under
and governed by the laws of the State of Delaware, without regard to the
conflicts of law provisions thereof.
5. Binding Effect. This Amendment shall be binding upon and shall
inure to the benefit of the Pledgor and the Pledgee and their respective
successors and assigns, and in particular, any holder of the Notes.
6. Reference to Original Pledge Agreement. Except as amended hereby, the
Original Pledge Agreement shall remain in full force and effect and is hereby
ratified and confirmed in all respects. On and after the effectiveness of the
amendment to the Original Pledge Agreement accomplished hereby, each reference
in the Original Pledge Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference to the Original Pledge
Agreement in the Agreement or other agreement, document or instrument executed
and delivered pursuant to the Agreement, shall be deemed a reference to the
Original Pledge Agreement, as amended hereby.
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7. No Other Modifications. Except as expressly provided in this
Amendment, all of the terms and conditions of the Original Pledge
Agreement shall remain unchanged and in full force and effect.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have executed this First
Amendment to Pledge Agreement on the day and year first above written.
PLEDGOR:
I-LINK INCORPORATED
By: /s John Edwards
John Edwards, President
PLEDGEE:
WINTER HARBOR, L.L.C.
By: First Media, L.P., its member
By: First Media Corporation,
its sole general partner
By: /s Ralph W. Hardy Jr.
Ralph W. Hardy Jr., Secretary
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