Exhibit 10(f)(2)
[Logo of First Union]
FIRST UNION NATIONAL BANK
NC 1220
Private Client Group
Three First Union Center
401 South Tryon Street
Charlotte NC 28288-1220
Tel 704 374-3102
Fax 704 374-3119
800 690-9749
June 16, 2000
Inter-Act Electronic Marketing, Inc.
5032 Parkway Plaza Boulevard
Charlotte, NC 28217
Ladies and Gentlemen:
Reference is made to your $5,000,000 Promissory Note of even date herewith
(the "Note") payable to us. You have informed us that, under the terms of your
Collateral Mortgage Security Agreement dated May 19, 2000 (the "Existing
Security Agreement") in favor of First Greenwich Capital, LLC ("First
Greenwich"), you are prohibited from granting any further liens or security
interests in any of the collateral thereunder, which collateral includes your
accounts receivable, inventory and ILN Terminals.
In consideration of our extension of credit to you under the Note and by
your acceptance hereof, you hereby agree and covenant that, as promptly as
practicable following the earlier to occur of (i) any termination of the
Existing Security Agreement and related release of the collateral thereunder or
(ii) the receipt of written consent of First Greenwich to your grant of a
security interest to us on terms satisfactory to us, you will enter into a
Security Agreement in our favor in substantially the form of Exhibit A hereto,
pursuant to which you will grant us a security interest in your accounts
receivable, inventory and equipment consisting of ILN Terminals. You further
agree to execute such financing statements and other documents as we may
reasonable require in connection therewith.
If the foregoing corresponds with your understanding of our agreement,
kindly sign this letter and the accompanying copies thereof in the appropriate
space below and return the same to the undersigned. This letter shall become a
binding agreement between you and us when you and we shall each have one or more
copies hereof executed.
FIRST UNION NATIONAL BANK
By: /s/ Eric Loselle
Title: Vice President
Agreed and Accepted:
INTER-ACT ELECTRONIC MARKETING, INC.
By: /s/ Thomas J. McGoldrick
Title: Executive Vice President
[Logo of First Union]
EXHIBIT A
SECURITY AGREEMENT
(Date)
Inter Act Electronic Marketing, Inc.
5032 Parkway Plaza Blvd.
Charlotte, North Carolina 28217
(Individually and collectively "Debtor")
First Union National Bank
301 South Tryon Street
Charlotte, North Carolina 28202
(Hereinafter referred to as "Bank")
For value received and to secure payment and performance of the Promissory Note
executed by the Debtor (also referred to herein as "Borrower") dated June 16,
2000 in the original principal amount of $5,000,000.00, payable to Bank, and any
extensions, renewals, modifications or novations thereof (the "Note"), this
Security Agreement and the other Loan Documents, and any other obligations of
Debtor to Bank however created, arising or evidenced, whether direct or
indirect, absolute or contingent, now existing or hereafter arising or acquired,
and whether or not evidenced by a Loan Document, including swap agreements (as
defined in 11 U.S.C. (S)101), future advances, and all costs and expenses
incurred by Bank to obtain, preserve, perfect and enforce the security interest
granted herein and to maintain, preserve and collect the property subject to the
security interest (collectively, "Obligations"), Debtor hereby grants to Bank a
continuing security interest in and lien upon the following described property,
whether now owned or hereafter acquired, and any additions, replacements,
accessions, or substitutions thereof and all cash and non-cash proceeds and
products thereof (collectively, "Collateral"):
ALL OF DEBTOR'S PRESENT AND FUTURE ACCOUNTS, ACCOUNTS RECEIVABLE, EQUIPMENT
CONSISTING OF ILN TERMINALS, AND INVENTORY (THE "PROPERTY); ALL OF DEBTOR'S
RIGHT, TITLE AND INTEREST, AND ALL OF DEBTOR'S REMEDIES, SECURITY AND LIENS, IN,
TO AND IN RESPECT OF THE PROPERTY, INCLUDING WITHOUT LIMITATION, RIGHTS OF
STOPPAGE IN TRANSIT, REPLEVIN, REPOSSESSION AND RECLAMATION AND OTHER RIGHTS AND
REMEDIES OF AN UNPAID VENDOR, LIENOR AND SECURED PARTY, GUARANTIES OR OTHER
CONTRACTS OF SURETYSHIP WITH RESPECT TO THE PROPERTY, DEPOSITS OR OTHER SECURITY
FOR THE OBLIGATION OF ANY ACCOUNT DEBTOR, AND CREDIT AND OTHER INSURANCE ON ANY
PROPERTY; ALL OF DEBTOR'S RIGHT, TITLE AND INTEREST IN, TO AND IN RESPECT TO, OR
OTHERWISE REPRESENTING OR EVIDENCING ANY PROPERTY, AND ALL RETURNED, RECLAIMED
OR REPOSSESSED GOODS; ALL BOOKS, RECORDS, LEDGER CARDS AND OTHER PROPERTY AND
GENERAL INTANGIBLES AT ANY TIME EVIDENCING OR RELATING TO THE PROPERTY, TOGETHER
WITH ALL ACCESSIONS, ADDITIONS, REPLACEMENTS AND SUBSTITUTIONS THERETO AND
THEREFOR AND ALL PRODUCTS AND PROCEEDS THEREOF AND THEREFROM (INCLUDING PROCEEDS
OF ALL INSURANCE ARISING THEREFROM) (COLLECTIVELY, THE "COLLATERAL").
Debtor hereby represents and agrees that:
OWNERSHIP. Debtor owns the Collateral or Debtor will purchase and acquire
rights in the Collateral within ten days of the date advances are made under the
Loan Documents. If Collateral is being acquired with the proceeds of an advance
under the Loan Documents, Debtor authorizes Bank to disburse proceeds directly
to the seller of the Collateral. The Collateral is free and clear of all liens,
security interests, and claims except the prior lien of First Greenwich Capital,
LLC and those previously reported in writing to Bank.
TITLE/TAXES. Debtor has good and marketable title to Collateral and will
warrant and defend same against all claims. Debtor will not transfer, sell, or
lease Collateral (except for sales of inventory and
sales, leases or other dispositions of ILN Terminals). Debtor agrees to pay
promptly all taxes and assessments upon or for the use of Collateral and on this
Security Agreement unless contested by Debtor in good faith. At its option, Bank
may discharge taxes, liens, security interests or other encumbrances at any time
levied or placed on Collateral. Debtor agrees to reimburse Bank, on demand, for
any such payment made by Bank. Any amounts so paid shall be added to the
Obligations.
WAIVERS. Debtor waives presentment, demand, protest, notice of dishonor, notice
of default, demand for payment, notice of intention to accelerate, and notice of
acceleration of maturity. Debtor further agrees not to assert against Bank as a
defense (legal or equitable), as a set-off, as a counterclaim, or otherwise, any
claims Debtor may have against any seller or lessor that provided personal
property or services relating to any part of the Collateral. Debtor waives all
exemptions and homestead rights with regard to the Collateral. Debtor waives
any and all rights to notice or to hearing prior to Bank's taking immediate
possession or control of any Collateral, and to any bond or security which might
be required by applicable law prior to the exercise of any of Bank's remedies
against any Collateral. All rights of Bank and security interests hereunder,
and all obligations of Debtor hereunder, shall be absolute and unconditional,
not discharged or impaired irrespective of (and regardless of whether Debtor
receives any notice of): (i) any lack of validity or enforceability of any Loan
Document; (ii) any change in the time, manner or place of payment or
performance, or in any term, of all or any of the Obligations or the Loan
Documents or any other amendment or waiver of or any consent to any departure
from any Loan Document; (iii) any exchange, release or non-perfection of any
collateral, or any release of or modifications of the obligations of any
guarantor or other obligor; (iv) any amendment or waiver of or consent to
departure from any Loan Document or other agreement. To the extent permitted by
law, Debtor hereby waives any rights under any valuation, stay, appraisement,
extension or redemption laws now existing or which may hereafter exist and
which, but for this provision, might be applicable to any sale or disposition of
the Collateral by Bank; and any other circumstance which might otherwise
constitute a defense available to, or a discharge of any party with respect to
the Obligations.
NOTIFICATIONS. Debtor will notify Bank in writing at least 30 days prior to any
change in: (i) Debtor's chief place of business and/or residence; (ii) Debtor's
name or identity; or (iii) Debtor's corporate/organizational structure. In
addition, Debtor shall promptly notify Bank of any material claims or alleged
claims of any other person or entity to the Collateral or the institution of any
material litigation, arbitration, governmental investigation or administrative
proceedings against or affecting the Collateral. Debtor will keep Collateral at
the location(s) previously provided to Bank until such time as Bank provides
written advance consent to a change of location. Debtor will bear the cost of
preparing and filing any documents necessary to protect Bank's liens.
FINANCING STATEMENTS, POWER OF ATTORNEY. No financing statement (other than any
filed by Bank or with respect to liens disclosed above) covering any Collateral
is on file in any public filing office. On request of Bank, Debtor will execute
one or more financing statements in form satisfactory to Bank and will pay all
costs and expenses of filing the same or of filing this Security Agreement in
all public filing offices, where filing is deemed by Bank to be desirable. Bank
is authorized to file financing statements relating to Collateral without
Debtor's signature where authorized by law. Debtor hereby constitutes and
appoints Bank the true and lawful attorney of Debtor with full power of
substitution to take any and all appropriate action and to execute any and all
documents or instruments that may be necessary or desirable to accomplish the
purpose and carry out the terms of this Security Agreement. The foregoing power
of attorney is coupled with an interest and shall be irrevocable until all of
the Obligations have been paid in full. Neither Bank nor anyone acting on its
behalf shall be liable for acts, omissions, errors in judgment, or mistakes in
fact in such capacity as attorney-in-fact. Debtor ratifies all acts of Bank as
attorney-in-fact. Debtor agrees to take such other actions as might be
requested for the perfection, continuation and assignment, in whole or in part,
of the security interests granted herein. If certificates, passbooks, or other
documentation or evidence is/are issued or outstanding as to any of the
Collateral, Debtor will cause the security interests of Bank to be properly
protected, including perfection by notation thereon or delivery thereof to Bank.
ACCOUNTS RECEIVABLE. Debtor warrants that Collateral consisting of accounts
receivable (i) genuine and enforceable in accordance with its terms except as
limited by law; (ii) not subject to any defense,
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set-off, claim or counterclaim of a material nature against Debtor except as to
which Debtor has notified Bank in writing; and (iii) not subject to any other
circumstances that would impair the validity, enforceability, value, or amount
of such Collateral except as to which Debtor has notified Bank in writing.
ACCOUNT INFORMATION. From time to time, at Bank's request, Debtor shall provide
Bank with schedules describing all accounts receivable, including customers'
addresses, credited or acquired by Debtor and at Bank's request shall execute
and deliver written assignments and documents evidencing such accounts
receivable to Bank. Together with each schedule, Debtor shall, if requested by
Bank, furnish Bank with copies of Debtor's sales journals, invoices, customer
purchase orders or the equivalent, and original shipping or delivery receipts
for all goods sold, and Debtor warrants the genuineness thereof.
ACCOUNT DEBTORS. If a Default should occur, Bank shall have the right to notify
the account and contract debtors obligated on any or all of the Collateral to
make payment thereof directly to Bank and Bank may take control of all proceeds
of any such Collateral, which rights Bank may exercise at any time. The cost of
such collection and enforcement, including attorneys' fees and expenses, shall
be borne solely by Debtor whether the same is incurred by Bank or Debtor. If a
Default should occur or upon demand of Bank, Debtor will, upon receipt of all
checks, drafts, cash and other remittances in payment on Collateral, deposit the
same in a special bank account maintained with Bank, over which Bank also has
the power of withdrawal.
If a Default should occur, no discount, credit, or allowance shall be granted by
Debtor to any account debtor and no return of merchandise shall be accepted by
Debtor without Bank's consent. Bank may, after Default, settle or adjust
disputes and claims directly with account contract debtors for amounts and upon
terms that Bank considers advisable, and in such cases Bank will credit the
Obligations with the net amounts received by Bank, after deducting all of the
expenses incurred by Bank. Debtor agrees to indemnify and defend Bank and hold
it harmless with respect to any claim or proceeding arising out of any matter
related to collection of Collateral.
GOVERNMENT CONTRACTS. If any Collateral covered hereby arises from obligations
due to Debtor from any governmental unit or organization, Debtor shall
immediately notify Bank in writing and execute all documents and take all
actions demanded by Bank to ensure recognition by such governmental unit or
organization of the rights of Bank in the Collateral.
COLLATERAL DUTIES. Bank shall have no custodial or ministerial duties to
perform with respect to Collateral pledged except as set forth herein; and by
way of explanation and not by way of limitation, Bank shall incur no liability
for any of the following: (i) loss or depreciation of Collateral (unless caused
by its willful misconduct or gross negligence), (ii) failure to present any
paper for payment or protest, to protest or give notice of nonpayment, or any
other notice with respect to any paper or Collateral.
TRANSFER OF COLLATERAL. Bank may assign its rights in Collateral or any part
thereof to any assignee who shall thereupon become vested with all the powers
and rights herein given to Bank with respect to the property so transferred and
delivered, and Bank shall thereafter be forever relieved and fully discharged
from any liability with respect to such property so transferred, but with
respect to any property not so transferred, Bank shall retain all rights and
powers hereby given.
INSPECTION, BOOKS AND RECORDS. Debtor will at all times keep accurate and
complete records covering each item of Collateral, including the proceeds
therefrom. Bank, or any of its agents, shall have the right, at intervals to be
determined by Bank and without hindrance or delay, to inspect, audit, and
examine the Collateral and to make extracts from the books, records, journals,
orders, receipts, correspondence and other data relating to Collateral, Debtor's
business or any other transaction between the parties hereto. Debtor will at
its expense furnish Bank copies thereof upon request.
CROSS COLLATERALIZATION LIMITATION. As to any other existing or future consumer
purpose loan made by Bank to Debtor, within the meaning of the Federal Consumer
Credit Protection Act, Bank expressly waives any security interest granted
herein in Collateral that Debtor uses as a principal dwelling and household
goods.
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ATTORNEYS' FEES AND OTHER COSTS OF COLLECTION. Debtor shall pay all of Bank's
reasonable expenses incurred in enforcing this Security Agreement and in
preserving and liquidating Collateral, including but not limited to, reasonable
arbitration, paralegals', attorneys' and experts' fees and expenses, whether
incurred with or without the commencement of a suit, trial, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.
DEFAULT. If any of the following occurs, a default ("Default") under this
Security Agreement shall exist: (i) the failure of timely payment or
performance of any of Obligations or a default under any Loan Document; (ii) any
breach of any representation or agreement contained or referred to in this
Security Agreement or other Loan Document; (iii) any material loss, theft,
substantial damage, or destruction of Collateral not fully covered by insurance,
or as to which insurance proceeds are not remitted to Bank within 30 days of the
loss; (iv) any sale, lease, or encumbrance of any Collateral not specifically
permitted herein without prior written consent of Bank; (v) the making of any
levy, seizure, or attachment on or of Collateral which is not removed within 10
days; (vi) the death of, appointment of guardian for, dissolution of,
termination of existence of, loss of good standing status by, appointment of a
receiver for, assignment for the benefit of creditors of, or commencement of any
bankruptcy or insolvency proceeding by or against Debtor, its Subsidiaries or
Affiliates ("Affiliate" shall have the meaning as defined in 11 U.S.C. (S) 101;
and "Subsidiary" shall mean any corporation of which more than 50% of the issued
and outstanding voting stock is owned directly or indirectly by Debtor), if any,
or any general partner of or the holder(s) of the majority ownership interests
in Debtor or any party to the Loan Documents; or (vii) any attempt to terminate,
revoke, rescind, modify, or violate the terms of this Security Agreement without
the prior written consent of Bank.
REMEDIES ON DEFAULT (INCLUDING POWER OF SALE). If a Default occurs, all of the
Obligations shall be immediately due and payable, without notice and Bank shall
have all the rights and remedies of a secured party under the Uniform Commercial
Code. Without limitation thereto, Bank shall have the following rights and
remedies: (i) to take immediate possession of Collateral, without notice or
resort to legal process, and for such purpose, to enter upon any premises on
which Collateral or any part thereof may be situated and to remove the same
therefrom, or, at its option, to render Collateral unusable or dispose of said
Collateral on Debtor's premises; (ii) to require Debtor to assemble the
Collateral and make it available to Bank at a place to be designated by Bank;
(iii) to exercise its right of set-off or bank lien as to any monies of Debtor
deposited in accounts of any nature maintained by Debtor with Bank or affiliates
of Bank, without advance notice, regardless of whether such accounts are general
or special; (iv) to dispose of Collateral, as a unit or in parcels, separately
or with any real property interests also securing the Obligations, in any county
or place to be selected by Bank, at either private or public sale (at which
public sale Bank may be the purchaser) with or without having the Collateral
physically present at said sale.
Any notice of sale, disposition or other action by Bank required by law and sent
to Debtor at Debtor's address shown above, or at such other address of Debtor as
may from time to time be shown on the records of Bank, at least 5 days prior to
such action, shall constitute reasonable notice to Debtor. Notice shall be
deemed given or sent when mailed postage prepaid to Debtor's address as provided
herein. Bank shall be entitled to apply the proceeds of any sale or other
disposition of the Collateral, and the payments received by Bank with respect to
any of the Collateral, to Obligations in such order and manner as Bank may
determine. Collateral that is subject to rapid declines in value and is
customarily sold in recognized markets may be disposed of by Bank in a
recognized market for such collateral without providing notice of sale. Debtor
waives any and all requirements that the Bank sell or dispose of all or any part
of the Collateral at any particular time, regardless of whether Debtor has
requested such sale or disposition.
REMEDIES ARE CUMULATIVE. No failure on the part of Bank to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by Bank or any right,
power or remedy hereunder preclude any other or further exercise thereof or the
exercise of any right, power or remedy. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law, in equity, or
in other Loan Documents.
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MISCELLANEOUS. (i) AMENDMENTS AND WAIVERS. No waiver, amendment or
modification of any provision of this Security Agreement shall be valid unless
in writing and signed by Debtor and an officer of Bank. No waiver by Bank of
any Default shall operate as a waiver of any other Default or of the same
Default on a future occasion. (ii) ASSIGNMENT. All rights of Bank hereunder
are freely assignable, in whole or in part, and shall inure to the benefit of
and be enforceable by Bank, its successors, assigns and affiliates. Debtor
shall not assign its rights and interest hereunder without the prior written
consent of Bank, and any attempt by Debtor to assign without Bank's prior
written consent is null and void. Any assignment shall not release Debtor from
the Obligations. This Security Agreement shall be binding upon Debtor, and the
heirs, personal representatives, successors, and assigns of Debtor. (iii)
APPLICABLE LAW; CONFLICT BETWEEN DOCUMENTS. This Security Agreement shall be
governed by and construed under the law of the state named in the address of the
Bank first shown above without regard to that state's conflict of laws
principles. If any terms of this Security Agreement conflict with the terms of
any commitment letter or loan proposal, the terms of this Security Agreement
shall control. (iv) JURISDICTION. Debtor irrevocably agrees to non-exclusive
personal jurisdiction in the state in which the office of Bank as stated above
is located. (v) SEVERABILITY. If any provision of this Security Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective but only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement. (vi) NOTICES. Any notices to Debtor shall be sufficiently
given, if in writing and mailed or delivered to the address of Debtor shown
above or such other address as provided hereunder; and to Bank, if in writing
and mailed or delivered to Bank's office address shown above or such other
address as Bank may specify in writing from time to time. In the event that
Debtor changes Debtor's mailing address at any time prior to the date the
Obligations are paid in full, Debtor agrees to promptly give written notice of
said change of address by registered or certified mail, return receipt
requested, all charges prepaid. (vii) CAPTIONS. The captions contained herein
are inserted for convenience only and shall not affect the meaning or
interpretation of this Security Agreement or any provision hereof. The use of
the plural shall also mean the singular, and vice versa. (viii) JOINT AND
SEVERAL LIABILITY. If more than one party has signed this Security Agreement,
such parties are jointly and severally obligated hereunder. (ix) BINDING
CONTRACT. Debtor by execution and Bank by acceptance of this Security
Agreement, agree that each party is bound by all terms and provisions of this
Security Agreement. (x) LOAN DOCUMENTS. The term "Loan Documents" refers to
all documents, whether now or hereafter existing, executed in connection with or
related to the Obligations and may include, without limitation and whether
executed by Debtor or others, commitment letters, loan agreements, guaranty
agreements, confirmations, deposit or other similar agreements, other security
agreements, letters of credit, instruments, financing statements, mortgages,
deeds of trust, deeds to secure debt, and any amendments or supplements
(excluding swap agreements as defined in 11 U.S.C. (S) 101).
IN WITNESS WHEREOF, Debtor, on the day and year first written above, has caused
this Security Agreement to be executed under seal.
Inter Act Electronic Marketing, Inc.
Taxpayer Identification Number: 56-1817510
By: (SEAL)
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Name:
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Title:
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Schedule A to UCC
SCHEDULE A TO UCC FROM INTER ACT ELECTRONIC MARKETING, INC. ("DEBTOR") AND FOR
THE BENEFIT OF FIRST UNION NATIONAL BANK ("SECURED PARTY").
DESCRIPTION OF COLLATERAL:
All of Debtor's present and future accounts, accounts receivable, equipment
consisting of ILN Terminals, and inventory (the "Property); all of Debtor's
right, title and interest, and all of Debtor's remedies, security and liens, in,
to and in respect of the Property, including without limitation, rights of
stoppage in transit, replevin, repossession and reclamation and other rights and
remedies of an unpaid vendor, lienor and secured party, guaranties or other
contracts of suretyship with respect to the Property, deposits or other security
for the obligation of any account debtor, and credit and other insurance on any
property; all of Debtor's right, title and interest in, to and in respect to, or
otherwise representing or evidencing any Property, and all returned, reclaimed
or repossessed goods; all books, records, ledger cards and other property and
general intangibles at any time evidencing or relating to the Property, together
with all accessions, additions, replacements and substitutions thereto and
therefor and all products and proceeds thereof and therefrom (including proceeds
of all insurance arising therefrom) (collectively, the "Collateral").