EXHIBIT 10.4.9
SECONDARY OPERATING AGREEMENT
THIS SECONDARY OPERATING AGREEMENT (the "Agreement") is entered into as of
this 1st day of February, 2001 by and among E-COMMERCE SUPPORT CENTERS, INC., a
North Carolina corporation (the "Company"), and GIBRALTER PUBLISHING, INC., a
North Carolina corporation ("Gibralter").
WITNESSETH:
WHEREAS, the Company is in the business of selling and providing outsourced
customer support services to entities with electronic commerce initiatives (the
"Business"); and
WHEREAS, Gibralter owns certain tangible and intangible assets (the "Option
Assets", as defined below) currently used in the Business of the Company; and
WHEREAS, the Company has granted to Gibralter the option to sell the Option
Assets and Gibralter has granted to the Company the option to buy the Option
Assets in accordance with the terms and conditions in that certain Option
Agreement dated April 13, 2000, as amended by that certain First Amendment to
Option Agreement dated as of the 1st day of February, 2001 (the "First Amendment
to Option Agreement") (the "Option Agreement"); and
WHEREAS, in order to pay the purchase price of the Option Assets, the
Company has executed two separate promissory notes, Promissory Note A and
Promissory Note B (as defined in the Option Agreement); and
WHEREAS, the parties hereto desire to provide for an agreement governing
the continued use, operation and ownership of the Option Assets should the
Company default under Promissory Note A and the legal title to the Option Assets
revert back to Gibralter pursuant to that certain Default and Assignment
Agreement dated as of the 1st day of February, 2001 (the "Default and Assignment
Agreement");
NOW THEREFORE, for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows (capitalized terms used herein and not
otherwise defined shall have their respective meanings as set forth in the
Option Agreement):
1. OPTION ASSETS. Gibralter hereby leases and licenses to the Company,
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for the Term hereof, all of those tangible and intangible assets of Gibralter
listed on EXHIBIT A attached hereto (the "Option Assets"). Gibralter shall
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promptly allow the Company to use the Option Assets beginning immediately upon
execution of this Agreement and continuing through the Term of this Agreement.
2. TERM. The term of this Agreement (the "Term") shall commence in
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accordance with the conditions precedent set forth in Paragraph 3 below and
shall continue thereafter until the termination of this Agreement in accordance
with the provisions of Paragraph 5 below.
3. CONDITIONS PRECEDENT TO EFFECTIVENESS. It shall be a condition
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precedent to the effectiveness of this Agreement that the escrow agent under
that certain Escrow Agreement dated as of the 1st day of February, 2001 (the
"Escrow Agreement") shall have delivered to Gibralter that certain Default and
Assignment Agreement dated as of the 1st day of February, 2001 between the
Company, Gibralter and Paladyne Corp., a Delaware corporation ("Paladyne") (the
"Default and Assignment Agreement"); provided, however, that this Agreement
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shall terminate in accordance with the provisions of Paragraph 5 below.
4. FEES FOR LEASING AND LICENSING THE OPTION ASSETS. In consideration
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of Gibralter's lease and license of the Option Assets to the Company pursuant to
this Agreement, the Company shall pay to Gibralter such amounts, at such times,
as are determined in accordance with the schedule of payments attached hereto as
EXHIBIT B.
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5. TERMINATION; EFFECTS OF TERMINATION.
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a. Termination. This Agreement shall be automatically terminated on
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either: (i) that date Three Hundred Sixty (360) days from the date of Promissory
Note A; or (ii) the date which is ten (10) business days following the Company's
failure to make a scheduled payment in accordance with Exhibit B attached
hereto.
b. Effects of Termination. Upon the termination of this Agreement by
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either party, neither party shall be obligated hereunder.
5. MISCELLANEOUS.
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(a) Governing Law. This Agreement shall be construed and interpreted
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in accordance with the laws of the State of North Carolina.
(b) Entire Agreement. The Company and Gibralter agree that no
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representations or inducements have been made other than those expressed herein
and that this Agreement contains the entire agreement between the parties hereto
with respect to the subject matter hereof.
(c) Binding Effect. All of the terms and provisions of this Agreement
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shall be binding upon and inure to the benefit of the parties' successors and
assigns.
(d) Amendment. This Agreement may not be amended, or modified, nor any
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provision hereof waived, nor the time for any performance hereunder extended,
except in writing duly executed by both of the parties hereto.
(e) Assignment. The rights and obligations provided by this Agreement
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shall not be assignable without the express written consent of the parties
hereto.
(f) No Third Party Beneficiaries. Nothing herein is intended to confer
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upon any person, other than the parties and their successors and permitted
assigns, any rights or remedies pursuant to this Agreement.
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(g) Counterparts. This Agreement may be executed simultaneously in
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multiple counterparts, each of which shall be deemed an original.
(h) Notices. All notices, requests, demands, and other communications
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hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand, mailed by certified or registered mail with postage prepaid,
or shipped and receipted by express courier services with charges prepaid by
shipper, addressed as follows (or to such other address as may be designated by
notice given pursuant hereto):
If to Gibralter: Gibralter Publishing, Inc.
1650A Gum Branch Road
Jacksonville, North Carolina 28540
If to the Company: e-commerce support centers, inc.
1650A Gum Branch Road
Jacksonville, North Carolina 28540
with a copy to: Kilpatrick Stockton LLP
3737 Glenwood Avenue, Suite 400
Raleigh, North Carolina 27612
Attn: James F. Verdonik
(i) Further Action. The parties hereto, at any time and from time to
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time, after the date hereof, upon the request of the other party hereto, shall
do, execute, acknowledge and deliver or cause to be done, executed, acknowledged
and delivered, all such further acts, assignments, transfers, agreements,
assurances and powers of attorney as may be reasonably required to carry out the
transactions herein contemplated.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be made and entered into by their duly authorized officers as of the day and
year first above written.
COMPANY:
E-COMMERCE SUPPORT CENTERS, INC., a
North Carolina corporation
ATTEST: By: /s/ Terrence J. Leifheit
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Terrence J. Leifheit, President
/s/ Clifford A. Clark
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Clifford A. Clark, Secretary
[CORPORATE SEAL]
GIBRALTER:
GIBRALTER PUBLISHING, INC., a
North Carolina corporation
ATTEST: By: /s/ Terrence J. Leifheit
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Terrence J. Leifheit, President
/s/ Edward A. Bohn
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Edward A. Bohn, Secretary
[CORPORATE SEAL]
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EXHIBIT A
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OPTION ASSETS
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EXHIBIT B
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The Company shall pay to Gibralter the sum of Twenty-Five Thousand and No/100
Dollars ($25,000.00) per month during the Term of this Agreement for the lease
and license of the Option Assets.
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