Exhibit 10.44
FIRST AMENDMENT TO SECURITY AGREEMENT
THIS FIRST AMENDMENT TO SECURITY AGREEMENT is made and entered into
as of January 15, 1999, by and among I-LINK INCORPORATED, a Florida
corporation (the "Company"), I-LINK SYSTEMS, INC., a Utah corporation
with its principal place of business at 13751 South Wadsworth Park Drive,
Suite 200, Draper, UT 84020 ("Systems"), I-LINK COMMUNICATIONS, INC., a
Utah corporation, with its principal place of business at 13751 South
Wadsworth Park Drive, Suite 200, Draper, UT 84020 ("Communications"),
MIBRIDGE, INC., a Utah corporation, with its principal place of business
at 13751 South Wadsworth Park Drive, Suite 200, Draper, UT 84020
("MiBridge"), I-LINK WORLDWIDE, L.L.C., a Delaware limited liability
company, with its principal place of business at 13751 South Wadsworth
Park Drive, Suite 200, Draper, UT 84020 ("Worldwide"), VIANET TECHNOLOGIES,
LTD., an Israeli corporation, headquartered in Ramat Hasharon, Israel
("Vianet" and together with the Company, Systems, Communications, MiBridge and
Worldwide, collectively, the "Debtors" and individually, a "Debtor"), and WINTER
HARBOR, L.L.C., a Delaware limited liability company with its principal place of
business at 11400 Skipwith Lane, Potomac, Maryland 20854 (the "Secured Party").
RECITALS
A. The Company owns all of the capital stock and the limited
liability company interests of Systems, Communications, MiBridge, Worldwide and
Vianet.
B. The Secured Party has lent to the Company (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 Company under the
Original Loans and under the notes and other documents and instruments entered
into in connection therewith are secured by a Security Agreement, dated as of
April 14, 1997 (the "Original Security Agreement"), entered into pursuant to the
Original Agreement, dated April 14, 1998 (the "Original Agreement"), by and
between the Secured Party and the Debtors, other than Vianet. All capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to such terms in the Original Agreement.
C. The Secured Party has further lent to the Company $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 (collectively the "Second Loans"), and has
made available for borrowing $8,000,000 pursuant to a Bridge Loan Agreement,
dated January 15, 1999 (the "Loan Agreement" and together with the Original Loan
and the Second Loan, the "Loans"). Each of the Loans are evidenced by certain
promissory notes (the "Notes").
D. In order to induce the Secured Party to enter into the Loan
Agreement and to secure the Loans made pursuant to the Second Loans and Loan
Agreement, the Company and the Debtors have agreed to enter into this
Amendment, the Original Security Agreement as amended hereby shall be referred
to as the "Security Agreement".
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AGREEMENTS
In consideration of the foregoing Recitals, and of the agreements
made herein, and of the Loans made or to be made by the Secured Party to the
Company, the Debtors, the Company and the Secured Party agree as follows:
1. Amendments.
1.1 The First Recital of the Original Security Agreement is hereby
amended in its entirety to read as follows:
I-Link Incorporated, a Florida corporation (the "Company"), owns all
of the capital stock and membership interests, as applicable, of I-Link
Systems, Inc., I-Link Communications, Inc., MiBridge, Inc., I-Link
Worldwide, L.L.C. and Vianet Technologies, Ltd. (collectively, including
the Company, the "Debtors" and individually, a "Debtor"). The Secured
Party has lent to the Company (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 Secured Party has further lent to the Company
$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 (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" and
together with the Original Loan and the Second Loan, the "Loans"). The
Loans are evidenced by certain promissory notes (the "Notes"). The Company
requested that the Secured Party 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 Company 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
Security 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 Debtors and the Company have agreed to enter into
this Security Agreement.
1.2 The Second Recital of the Original Security Agreement is
hereby amended in its entirety to read as follows:
The Debtors, other than the Company, have guaranteed the
Loans and the obligations of the Company under the Notes and the
Loan Agreement pursuant to the terms of a Subsidiary Guaranty dated
as of January 15, 1999 (the "Guaranty").
1.4 Section 1 of the Original Security Agreement is hereby amended by
deleting it in its entirety and inserting the following in place thereof:
GRANT OF SECURITY INTEREST. In order to secure the payment and
performance of all of the obligations of the Company under the Notes and the
Loan Agreement and of the other Debtors under the Guaranty and the payment and
performance of the Loans, plus interest accrued thereon (being hereinafter
collectively referred to as the "Obligations"), the Debtors hereby (i) reaffirm
and acknowledge the first priority security interest granted pursuant to the
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Original Agreement, and (ii) grant to the Secured Party, a second priority
perfected security interest in all of their respective right, title and interest
in and to all of their personal property, both tangible and intangible and of
every kind and description, whether now or hereafter existing, or now owned or
hereafter acquired, and wherever located, and all proceeds, products,
replacements, additions, accessions and/or substitutes therefor, including,
without limitation, all goods, machinery, equipment, furniture, furnishings,
fixtures, inventory, accounts, chattel paper, instruments and general
intangibles, as such terms may be defined in the Uniform Commercial Code in the
jurisdiction in which such assets are located (other than equipment leased to
the Company or any Debtor and any leases which by their terms prohibit the grant
of security interests in, or assignments of, the Company's or such Debtor's
leasehold interest therein), and the proceeds and products of any and all of the
foregoing assets and properties described in this Section 1, including proceeds
of insurance policies relating to any and all of the foregoing assets and
properties. All of the foregoing shall be hereinafter referred to as the
"Collateral."
2. Representations and Warranties. Each and every representation
and warranty set forth in the Original Security Agreement is hereby
confirmed and ratified, in all material respects, by the Debtors and the
Company, 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 Company, the Debtors and
the Secured Party 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 Company, the Debtors and the Secured Party
and their respective successors and assigns, and in particular, any holder of
the Notes.
6. Reference to Original Security Agreement. Except as amended
hereby, the Original Security 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 Security Agreement accomplished
hereby, each reference in the Original Security Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import, and each reference to
the Original Security 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 Security Agreement, as amended hereby.
7. No Other Modifications. Except as expressly provided in this
Amendment, all of the terms and conditions of the Original Security 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 Security Agreement on the day and year first above written.
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
Ralph W. Hardy Jr., Secretary
I-LINK INCORPORATED
By: /s John Edwards
John Edwards, President
I-LINK WORLDWIDE, L.L.C.
I-LINK SYSTEMS, INC.
By: I-Link Incorporated, its sole member
By: /s John Edwards
John Edwards, President By: s/ John Edwards
John Edwards, President
I-LINK COMMUNICATIONS, INC. VIANET TECHNOLOGIES, LTD.
By: /s John Edwards By: /s John Edwards
John Edwards, President John Edwards, President
MIBRIDGE, INC.
By: /s John Edwards
John Edwards, President
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