ACCOUNTS RECEIVABLE FINANCING AGREEMENT
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This
Summary Disclosure is merely a summary of the attached Agreement
provided for the convenience of the Client and the Client is urged to read
the entire Agreement for all details. In any conflict between this
Summary Disclosure and the Agreement, the Agreement prevails.
Further, the Client understands that Crestmark assumes no responsibility
for the accuracy of this Summary Disclosure, and is not liable for any
conflict between this Summary Disclosure and the Agreement, absent gross
negligence or willful misconduct.
SUMMARY
DISCLOSURE
(all
terms subject to the terms and conditions of this Agreement)
Initial
Purchase Price (up
to): 80%
Interest
Rate: Prime
Rate plus 1% (based upon funds employed)
Servicing
Fee: An
incremental 0.575% each 30 days (based upon Net Face
Amount)
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This
AGREEMENT is entered into by and between DESKTOP ACQUISITION SUB, INC., doing
business as INTERCLICK, INC., a Delaware corporation, having its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ ("Client"), and
CRESTMARK COMMERCIAL CAPITAL
LENDING LLC located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "CRESTMARK").
AGREEMENT
1. Purpose,
Definitions and Construction. The purpose of this Agreement
and the financing provided herein is commercial in nature and is not for
household, consumer, family and/or personal use. The following terms
have been given the following meanings:
1.1. “Account Debtor” - the obligor
on an Account.
1.2. “Accounts” - accounts (as
defined in the Uniform Commercial Code) created by the Client.
1.3. “Agreement” - This Accounts
Receivable Financing Agreement as modified or amended from time to time, and any
exhibits or attachments to this Agreement.
1.4. “Avoidance Claim” - any claim
that any payment received by Crestmark from or for the account of an Account
Debtor is avoidable under the Bankruptcy Code or any other debtor relief
statute.
1.5. “Balance Subject to Interest” –
The difference between the unpaid Net Face Amount of Purchased Accounts and the
Reserve Percentage.
1.6. “Crestmark” - see
preamble.
1.7. “Crestmark Investment” - with
respect to a Purchased Account, the sum of (i) the Initial Purchase Price, plus
(ii) all past due fees and charges owed by Client to Crestmark relating to said
Purchased Account.
1.8. “Crestmark Investment
Percentage” - 100% less the Reserve Percentage.
1.9. “Clearance Days” – Three (3)
calendar days.
1.10. “Client” - see
Preamble.
1.11. “Closed” -a Purchased Account
is closed upon the first to occur of (i) receipt of full payment by Crestmark or
(ii) the unpaid balance has been charged to the Reserve Account by Crestmark
pursuant to the terms hereof.
1.12. “Collateral” - all now owned
and hereafter acquired personal property and fixtures, and proceeds thereof,
(including proceeds of proceeds) including without limitation Accounts, Chattel
Paper, Goods Inventory, Equipment, Instruments, including Promissory Notes,
Investment Property, Documents, and General Intangibles. Collateral
does not include any interest or shares in Options Media Group
Holdings.
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1.13. “Default Interest Rate” – The
Interest Rate plus ten percent (10%) per annum.
1.14. “Early Termination Fee” - Two
percent (2%) of the credit facility provided to Client as set forth in the most
recent letter agreement between Client and Crestmark setting forth said credit
facility. The most recent document is that certain Non-Binding Credit
Proposal revised October 2, 2008.
1.15. “Eligible Account” - an Account
which is not an Ineligible Account.
1.16. “Events of Default” - see
Section 15.
1.17. “Exposed Payments” – Payments
received by Crestmark from an Account Debtor which has become subject to a
bankruptcy proceeding, to the extent such payments cleared said Account Debtor’s
deposit account within ninety days of the commencement of said bankruptcy
case.
1.18. “Ineligible Accounts” -
Purchased Accounts:
1.18.1.
that do not conform with the representations and warranties set forth in Section
12 of this Agreement;
1.18.2.
or any portion thereof, for which payment has not been received by Crestmark,
for any reason, within ninety (90) days of the date of invoice;
1.18.3.
which are owned by Crestmark at the time that Client has committed an Event of
Default hereunder.
1.19. “Initial Purchase Price” - the
Purchase Price less the Reserve Percentage relating to that Purchased
Account.
1.20. “Interest” - The product of the
Interest Rate multiplied by the average daily Balance Subject to Interest,
computed on a 360 day year.
1.21. “Interest Rate” – One percent
(1%) over the Prime Rate.
1.22. “Invoice” – the document that
evidences or is intended to evidence an Account. Where the context so
requires, reference to an Invoice shall be deemed to refer to the Account to
which it relates.
1.23. “Maximum Crestmark Investment”
- the product of the Net Face Amount of Purchased Accounts multiplied by the
Crestmark Investment Percentage.
1.24. “Misdirected Payment Fee” -
fifteen percent (15%) of the amount of any payment on account of a Purchased
Account where said payment has been received by Client and not immediately
delivered in kind or the proceeds paid by Client to Crestmark.
1.25. “Missing Notation Fee” –
fifteen percent (15%) of the Net Face Amount.
1.26. “Net Face Amount” - the gross
amount of a Purchased Account, based on shortest selling terms, less all
credits, discounts, and allowances to which the Account Debtor is
entitled.
1.27. “Obligations” - all present and
future obligations owing by Client to Crestmark, whether or not for the payment
of money, whether or not evidenced by any note or other instrument, whether
direct or indirect, absolute or contingent, due or to become due, joint or
several, primary or secondary, liquidated or unliquidated, secured or unsecured,
original or renewed or extended, whether arising before, during or after the
commencement of any Bankruptcy Case in which Client is a debtor, and all
principal, interest, fees, charges, expenses, attorneys’ fees and accountants’
fees chargeable to Client or incurred by Crestmark in connection with this
Agreement and/or the transaction(s) related thereto.
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1.28. “Primary Defaults” - Events of
default as set forth in Sections 15.1, 15.2, 15.4, or 15.7 herein.
1.29. “Prime Rate” – the “prime rate”
set forth in the Wall Street Journal as the "prime rate." If said
prime rate is set forth as a range, the Prime Rate hereunder shall be the
highest rate in said range.
1.30. “Purchase Price” – the Net
Face Amount of a Purchased Account.
1.31. “Purchase Schedule” – a
numbered schedule prepared by Crestmark listing those Accounts purchased by
Crestmark from Client.
1.32. “Purchased Account” - an
Account which has been purchased by Crestmark from Client
hereunder.
1.33. “Reserve Account” - an account
established in the records of Crestmark (and not a segregated or separate
account), representing the difference between the Crestmark Investment and the
Net Face Amount of Purchased Accounts.
1.34. “Reserve Percentage” - Twenty
percent (20%).
1.35. “Servicing Fee” - with respect
to any Purchased Account which is unpaid in whole or in part, the product of the
Servicing Fee Percent multiplied by the Net Face Amount of such Purchased
Account.
1.36. “Servicing Fee Percent” –
Five-hundred seventy-five thousandths percent (0.575%).
1.37. “Servicing Fee Increment” –
Thirty (30) day period.
1.38. “Settlement Amount”- payments
received by Crestmark as proceeds of Purchased Accounts listed on a Purchase
Schedule in excess of the Crestmark Investment relating thereto.
2. Sale and
Acceptance of Accounts.
2.1. The Client may tender to
Crestmark for purchase pursuant to this Agreement certain of its Accounts by
delivering to Crestmark copies of the Invoices or the original Invoices and any
additional backup documentation relating thereto as directed by
Crestmark.
2.2. Crestmark will conduct such
examination and verification of the Accounts, and such credit investigation of
the Account Debtors, as it considers necessary or desirable, and will notify the
Client as to which of the individual Accounts tendered by the Client, if any,
Crestmark elects to purchase from the Client. Crestmark shall have
the absolute right, in its sole discretion, to reject any or all of the Accounts
tendered to it by the Client, irrespective of whether or not Crestmark has
previously purchased Accounts from the Client or has purchased Accounts of any
particular Account Debtor.
2.3. Those Accounts which
Crestmark elects to purchase from the Client shall be listed in a Purchase
Schedule sent by Crestmark to Client. Client shall have been deemed
to have sold to Crestmark, and Crestmark shall be deemed to have purchased all
right, title, and interest of the Client in and to the Accounts listed on the
Purchase Schedule.
3. Payment
of Purchase Price.
3.1. The Initial Purchase Price
for each Purchased Account, less any amounts due by Client to Crestmark
hereunder, shall be paid to the Client in immediately available funds at the
time of purchase.
3.2. Client shall not permit the
Crestmark Investment to exceed the Maximum Crestmark Investment, and any such
excess shall be paid by Client to Crestmark on demand.
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4. Reserve
Account.
4.1. Refund of Reserve
Account. At Crestmark’s discretion, Crestmark shall pay the
Settlement Amount to Client, net of any amount due to Crestmark by Client
hereunder.
4.2. Crestmark may reduce the
Reserve Account by any amounts due from Client to Crestmark
hereunder.
4.3. Crestmark may increase the
Reserve Account at any time without notice if in the exercise of its reasonable
discretion such increase is necessary to reflect events, conditions,
contingencies or risks which do or may affect the value of the Collateral or
Client’s ability to perform its obligations hereunder.
4.4. Crestmark may pay any
amounts due Client hereunder by a credit to the Reserve Account;
4.5. Upon termination of this
Agreement Crestmark, may retain the Reserve Account unless and until Client has
executed and delivered to Crestmark a general release in the form of Exhibit A
hereto.
4.6. Exposed
Payments.
4.6.1.
Upon termination of this Agreement, Client shall pay to Crestmark (or Crestmark
may retain), to hold in a non-segregated non-interest bearing account, the
amount of all Exposed Payments (the “Preference Reserve”).
4.6.2.
Crestmark may charge the Preference Reserve with the amount of any Exposed
Payments which Crestmark pays to the bankruptcy estate of the Account Debtor
which made the Exposed Payment, on account of a claim asserted under Section 547
of the Bankruptcy Code.
4.6.3.
Crestmark shall refund to Client from time to time that balance of the
Preference Reserve for which a claim under Section 547 of the Bankruptcy Code
can no longer be asserted due to the passage of the statute of limitations,
settlement with the bankruptcy estate of the Account Debtor or
otherwise.
5. Fees.
5.1. Servicing
Fee. Client shall pay to Crestmark, when a Purchased Account
is Closed, the Servicing Fee at the end of each Servicing Fee Increment (or
portion thereof) from the date purchased until the date Closed.
5.2. Interest. Client
shall pay to Crestmark the Interest, on the first day of the month following the
month in which it accrues.
5.3. Misdirected Payment
Fee. Client shall pay any Misdirected Payment Fee to
Crestmark, immediately upon accrual.
5.4. Missing Notation
Fee. Client shall pay the Missing Notation Fee on any Account
that is sent by Client to an Account Debtor which does not contain the notice as
required by Section 8.1 hereof, immediately upon accrual.
6. Clearance
Days. For all purposes under this Agreement, Clearance Days
will be added to the date on which Crestmark receives any payment.
7. Repurchase
of Accounts. Crestmark may require that Client repurchase, by
payment of the Crestmark Investment, on demand, or, at Crestmark's option, by
Crestmark's charge to the Reserve Account:
7.1. Any Purchased Account which
becomes an Ineligible Account;
7.2. Any Purchased Account, the
payment of which has been disputed by the Account Debtor obligated thereon,
Crestmark being under no obligation to determine the bona fides of such
dispute;
7.3. Any Purchased Account for
which Client has breached its warranty under Section 12 hereunder;
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7.4. Any Purchased Account owing
from an Account Debtor which in Crestmark’s reasonable credit judgment has
become insolvent; and
7.5. All Purchased Accounts upon
the occurrence of an Event of Default or upon the termination date of this
Agreement.
8. Collection
of Accounts; Special Power of Attorney.
8.1. Client shall direct the
Account Debtors on Accounts to make payment as directed by Crestmark by
providing such notation on an Invoice as Crestmark shall direct.
8.2. Any payments from Account
Debtors received by Client contrary to payment instructions given to such
Account Debtors shall be delivered in kind to Crestmark immediately upon
receipt.
8.3. Client hereby grants
Crestmark an irrevocable power of attorney (which, being coupled with an
interest, is irrevocable) for the purpose of acting on Client’s behalf
to:
8.3.1.
endorse or sign Client’s name on any checks or other instruments which come into
Crestmark’s possession with respect to Accounts;
8.3.2.
negotiate, transfer, deposit, and otherwise deal with such checks or other
instruments as the sole owner thereof; and
8.3.3. to
settle, compromise, enforce and attempt to collect any Purchased Account or,
after the occurrence of an Event of Default, any Account.
8.4. After an Event of Default,
Client hereby grants Crestmark an irrevocable power of attorney (which, being
coupled with an interest, is irrevocable) for the purpose of acting on Client’s
behalf to change the address for the delivery of mail to Crestmark’s address and
to receive and open mail addressed to Client.
8.5. In granting this Power of
Attorney, Client hereby cancels and revokes all previous powers of attorney in
respect of the matters comprised herein which have been granted to any other
person.
9. Security
Interest.
9.1. As collateral securing the
Obligations, Client grants to Crestmark a continuing first priority security
interest in and to the Collateral.
9.2. Notwithstanding the
creation of the above security interest, the relationship of the parties shall
be that of purchaser and seller of accounts, and not that of lender and
borrower.
10. Affirmative
Covenants.
10.1. Client shall provide
Crestmark with:
10.1.1.
copies of Client’s bank deposit records periodically, if requested by
Crestmark;
10.1.2.
Client’s financial statements to include balance sheet and profit and loss
statement in accordance with GAAP within forty-five (45) days of the close of
the Client’s calendar month, which shall be certified by a responsible officer
of Client. Any supporting detail which Crestmark may request in
connection with its review and analysis of the monthly financial statements of
Client shall be furnished to Crestmark upon request.
10.2. Client shall allow
Crestmark to enter Client’s premises during normal business hours to perform its
review of Client’s records relating to the Collateral, or for any other purpose
reasonably necessary to facilitate this Agreement.
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10.3. Client shall pay when due
all payroll and other taxes, and shall provide proof thereof to Crestmark in
such form as Crestmark shall reasonably require.
11. Notification
to Account Debtors. Crestmark may at any time give notice to
Account Debtors that payments on Accounts shall be made directly to
Crestmark. Such notice may be in the form of Exhibit “B”
hereto. Client will execute a letter in the form of Exhibit “C”
hereto in support thereof.
12. Representations
and Warranties.
12.1. Client expressly warrants,
represents and covenants as follows:
12.1.1.
Client shall immediately notify Crestmark in writing upon it acquiring any facts
which would cause a Purchased Account to become an Ineligible
Account;
12.1.2.
Client has good and indefeasible clear title to the Collateral and has the
right, power and authority, subject to all applicable governmental regulations,
to sell Purchased Accounts hereunder, and to grant a security interest in the
Collateral to Crestmark;
12.1.3.
the Collateral is not subject to, and is free and clear of, any lien, claim,
pledge, security interest or encumbrance of any kind;
12.1.4.
Client is properly licensed and authorized to operate its business under all
applicable State and Federal laws in the name designated for Client on the
signature page of this Agreement;
12.1.5.
Client will not assign, pledge, subordinate, give a security interest in or
otherwise transfer any Collateral to any entity other than Crestmark or its
assigns;
12.1.6.
this Agreement is binding upon Client as well as upon Client’s successors,
representatives and assigns, and is legally enforceable in accordance with its
terms;
12.1.7.
Client will record its sale of Purchased Accounts to Crestmark and make
notations recording such sales in its accounting records and
books. Client hereby binds itself, its successor and assigns to
warrant and forever defend title in and to the Collateral unto Crestmark, its
successors and assigns, against any and every person whomsoever may assert any
claim to the Collateral or any part thereof.
12.1.8.
The Purchased Accounts are and will remain:
12.1.8.1.
bona fide existing obligations created by the sale and delivery of goods or the
rendition of services in the ordinary course of Client’s business;
12.1.8.2.
unconditionally owed and will be paid to Crestmark without defenses, disputes,
offsets, counterclaims, or rights of return or cancellation;
12.1.8.3.
not sales to any entity which is affiliated with Client or in any way not an
“arms length” transaction.
12.1.9.
Client has not received notice of actual or imminent bankruptcy, insolvency, or
material impairment of the financial condition of any applicable Account Debtor
regarding Purchased Accounts.
12.2. The foregoing
representations, covenants and warranties will run to the benefit of Crestmark’s
successors and assigns and will be continuing in nature and will remain in full
force and effect until all obligations and sums owing to Crestmark by Client
have been fully performed, paid and satisfied, whether or not this Agreement is
canceled or terminated. Client does hereby bind itself, its
successors and assigns, to indemnify and hold Crestmark (and its successors and
assigns) harmless from any and all cost incurred by Crestmark and its successors
and assigns, including attorney’s fees and court costs, for breach of any
warranty expressed in this Section.
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13. ACH
Authorization. In order to satisfy any of the Obligations,
Crestmark is hereby authorized by Client to initiate electronic debit or credit
entries through the ACH system to any deposit account maintained by Client
wherever located.
14. Avoidance
Claims.
14.1. Client shall indemnify
Crestmark from any loss arising out of the assertion of any Avoidance Claim and
shall pay to Crestmark on demand the amount thereof.
14.2. Client shall notify
Crestmark within two (2) business days of it becoming aware of the assertion of
an Avoidance Claim.
14.3. This Section 14 shall
survive termination of this Agreement.
15. Events of
Default. Client will be in default of this Agreement upon the
happening of any of the following events (herein called “Events of
Default”):
15.1. the failure by Client to
pay any sums due to Crestmark;
15.2. the happening of any event
which results in the creation of a Misdirected Payment Fee;
15.3. the failure by Client to
provide any reports or other information to Crestmark as required
hereunder;
15.4. the denial to Crestmark of
access to Client’s premises or records as required herein;
15.5. the breach of any
warranty, covenant or representation made herein or in connection
herewith;
15.6. the commencement of any
insolvency or debtor-relief proceeding by or against Client;
15.7. Client’s failure to pay
any State or Federal tax when due;
15.8. The Client or any present
or future guarantor of the Obligations becoming indicted or the target of any
criminal investigation by any law enforcement authority, or the service of a
subpoena or other discovery on the Client in connection with any claim asserted
against the Client or any guarantor by any governmental authority;
15.9. A sale, hypothecation or
other disposition is made of twenty percent (20%) or more of the beneficial
interest in any class of voting stock of Client, without the written consent of
Crestmark.
16. Remedies.
16.1. Upon the occurrence of a
Primary Default, or an Event of Default other than a Primary Default which has
not been cured within ten (10) business days after notice by Crestmark to
Client, Crestmark may:
16.1.1.
elect to declare any and all Purchased Accounts to be Ineligible
Accounts;
16.1.2.
declare that all Obligations are immediately due and payable without notice and
without opportunity for cure;
16.1.3.
Charge the Default Interest Rate instead of the Interest Rate on the Balance
Subject to Interest;
16.1.4.
commence and effect collection of any and all Collateral by whatever means
Crestmark deems reasonable and necessary, without recourse to judicial
proceedings against Client. Client expressly relieves and releases Crestmark and
its assigns, as the secured party, of any and all liability or responsibility
whatever which might arise because of Crestmark's or its assign's failure to
enforce by judicial process, or otherwise, any Account, or because of its
failure to give any notice or make any demand with regard thereto.
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16.2. Crestmark shall have all
rights and remedies of a secured party under applicable law, including the right
to enter, during normal business hours, upon the premises where any Collateral
is located and take immediate possession of such Collateral and remove same from
such premises.
16.3. To the extent deemed
reasonably necessary by Crestmark to aid in the collection of the Collateral,
Crestmark will have the right to the use of any computer hardware, software,
account ledgers, books, records, files and computer disks used by Client
pertaining to the Collateral.
16.4. Crestmark may avail itself
of all such other rights and remedies as may now or hereafter exist at law or in
equity for collection of said sums due and the enforcement of the covenants,
warranties and representations herein and resort to any one or combination of
such remedies provided hereunder will not prevent the concurrent or subsequent
employment of any other appropriate remedy.
17. Survival. All
representations, warranties and agreements herein contained on the part of
Client shall be effective so long as Obligations remain
outstanding.
18. Severability
of Provisions. In the event any one or more of the provisions
contained in this Agreement is held to be invalid, illegal or unenforceable in
any respect, then such provision shall be ineffective only to the extent of such
prohibition or invalidity, and the validity, legality, and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
19. Amendment
and Waiver. This Agreement shall not be changed, modified,
amended, or terminated except by a writing duly executed by Crestmark and
Client.
20. No
Waiver. No failure to exercise and no delay in exercising any
right, power, or remedy hereunder shall impair any right, power, or remedy which
Crestmark may have, nor shall any such delay be construed to be a waiver of any
of such rights, powers, or remedies, or any acquiescence in any breach or
default hereunder; nor shall any waiver of any breach or default of Client
hereunder be deemed a waiver of any default or breach subsequently
occurring. All rights and remedies granted to Crestmark hereunder
shall remain in full force and effect notwithstanding any single or partial
exercise of, or any discontinuance of action begun to enforce, any such right or
remedy. The rights and remedies specified herein are cumulative and
not exclusive of each other or of any rights or remedies which Crestmark would
otherwise have. Any waiver, permit, consent or approval by Crestmark
of any breach or default hereunder must be in writing and shall be effective
only to the extent set forth in such writing and only as to that specific
instance.
21. Successors
and Assigns.
21.1. This Agreement shall be
binding upon and inure to the benefit of Crestmark, Client, and their respective
successors and assigns.
21.2. Crestmark may assign its
rights and delegate its duties hereunder. Upon such assignment,
Client shall be deemed to have attorned to such assignee and shall owe the same
obligations to such assignee and shall accept performance hereunder by such
assignee as if such assignee were Crestmark.
22. Waiver of
Statute of Limitations. Client waives the pleading of any
statute of limitations with respect to any and all actions in connection
herewith.
23. Jurisdiction
and Venue. Client hereby irrevocably agrees that all actions
and proceedings arising out of or in any way connected with this Agreement shall
be litigated in courts having situs within the State of New York, and Client
hereby consents and submits to the jurisdiction of any local, state or federal
court located within said jurisdiction. Client hereby waives any
right it may have to transfer or change the venue of any litigation arising out
of or in any way connected with this Agreement.
24. Waiver of
Trial by Jury. IN RECOGNITION OF THE
HIGHER COSTS AND DELAY WHICH MAY RESULT FROM A JURY TRIAL, THE PARTIES HERETO
WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
(A) ARISING HEREUNDER, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT HERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
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25. Costs and
Expenses.
25.1. Client agrees to reimburse
Crestmark for all costs and expenses, including attorneys' fees, which Crestmark
has incurred or may incur in:
25.1.1.
administering or enforcing this Agreement and any documents prepared in
connection herewith;
25.1.2.
protecting, monitoring, preserving or enforcing any lien, security interest or
other right granted by Client to Crestmark (including travel expenses of
Crestmark’s employees and agents), or arising under applicable law, whether or
not suit is brought,
25.1.3.
connection with any federal or state insolvency proceeding commenced by or
against Client, including those (i) arising out of the automatic stay, (ii)
seeking dismissal or conversion of the bankruptcy proceeding or (iii) opposing
confirmation of Client's plan thereunder;
25.1.4.
connection with Client's sale of the Purchased Accounts and the grant of a
security interest in and to the Collateral (and other accounts receivable) to
Crestmark, filing fees, public records searches, and other expenses directly
related to the sale of the Accounts and the perfection of the security
interest. All such direct out-of-pocket expenses incurred by
Crestmark shall be reimbursed by Client to Crestmark on demand.
25.2. All such costs and
expenses which have been incurred on or prior to the execution hereof shall be
paid contemporaneously with the execution hereof. Any such costs and
expenses incurred subsequent to the execution hereof shall become part of the
Obligations when incurred.
26. Term;
Termination.
26.1. This Agreement will be
effective for an initial term of six (6) months, commencing with the Effective
Date as set forth below and will continue thereafter automatically renewing
annually unless terminated by either party upon written notice of termination
sent not less than thirty (30) nor more than ninety (90) days prior to the next
anniversary date hereof specifying such party's intention to terminate this
Agreement on the next anniversary date.
26.2. Early Termination
Fee. In the event that Client seeks to terminate this
Agreement other than as set forth in Section 26.1 above, Client shall pay the
Early Termination Fee to Crestmark as a condition to Crestmark's consent
thereto.
26.3. No termination of this
Agreement will in any way affect or impair any right of Crestmark arising prior
thereto or by reason thereof, nor will any such termination relieve Client of
any duty to Crestmark under, nor deny Crestmark any benefit from, this Agreement
or otherwise until all of Obligations have been fully discharged.
26.4. No Lien Termination Without
Release. In recognition of Crestmark’s right to have its
attorneys’ fees and other expenses incurred in connection with this Agreement
secured by the Collateral, notwithstanding payment in full of all Obligations by
Client, Crestmark shall not be required to record any terminations or
satisfactions of any of its liens on the Collateral unless and until Client and
all guarantors of its obligations have executed and delivered to Crestmark a
general release in the form of Exhibit A hereto. Client understands that this
provision constitutes a waiver of its rights under §9-513 of the
UCC.
27. State
Law; Jurisdiction. This Agreement is accepted, made and
will be governed by the laws of the State of Louisiana without regard to
conflict of laws principles. All sums due hereunder are payable in the State of
Louisiana. Both parties waive their right to trial by jury and agree to submit
all disputed issues to the judge of any court in which any litigation is
pending.
Page 9 of
13
28. Miscellaneous. This
Agreement sets forth the entire agreement and understanding between the parties
relating to the subject matter herein and merges all prior discussion between
them. Client may not assign any of its rights or obligations hereunder without
the prior written consent of Crestmark; however, Crestmark may assign any of its
rights and remedies. All notices pursuant to the Agreement must be in writing
and will be deemed given when (1) mailed postage prepaid by certified or
registered mail, return receipt requested, or (2) courier delivered personally
to the party concerned at the address set forth herein, or (3) facsimile
transmitted to the party concerned at the telecopier number given by the
respective party. The provisions of this Agreement are severable and if any of
these provisions will be held by any court of competent jurisdiction to be
unenforceable, void or voidable, such holding will not affect or impair any
other provision hereof. Crestmark may assign its rights and remedies including
assignments for financing and/or collateralization purposes. Client consents to
Crestmark or its assignees conducting a comprehensive due diligence review and
financial history investigation relating to Client. This Agreement may be
modified or amended only in writing signed by both parties.
29. USA
Patriot Act Notification. – The following notification is provided to
Client pursuant to Section 3265 of the USA Patriot Act of 2001, 31 U.S.C.
Section 5318:
IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the
government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person or entity that opens an account,
including any deposit account, treasury management account, loan or other
extension of credit. Crestmark will ask for the name, address, date
of birth, and other information that will allow Crestmark to identify all of
Client’s guarantors. Crestmark will also ask for a copy of each
guarantor’s driver’s license or other identifying documents.
IN
WITNESS WHEREOF, the respective authorized officers of the parties have executed
this Agreement effective as of the date hereof.
Accepted
in Baton Rouge, Louisiana this
_______ day
of ___________, 20 ____.
|
CRESTMARK COMMERCIAL CAPITAL LENDING LLC
|
DESKTOP ACQUISITION SUB, INC.
|
|
doing
business as INTERCLICK,
INC.
|
|
By:
|
By:
|
|
Print Name:
|
Print Name:
|
|
Title:
|
Title:
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Effective Date:
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Page 10
of 13
EXHIBIT
A
GENERAL
RELEASE
FOR GOOD
AND VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby
acknowledged, the undersigned and each of them (collectively “Releasor”) hereby
forever releases, discharges and acquits Crestmark Commercial Capital Lending
LLC (“Releasee”), its parent, directors, shareholders, agents and employees, of
and from any and all claims of every type, kind, nature, description or
character, and irrespective of how, why, or by reason of what facts, whether
heretofore existing, now existing or hereafter arising, or which could, might,
or may be claimed to exist, of whatever kind or name, whether known or unknown,
suspected or unsuspected, liquidated or unliquidated, each as though fully set
forth herein at length, to the extent that they arise out of or are in way
connected to or are related to that certain Accounts Receivable Finance
Agreement dated {Effective Date of the
Agreement}.
Releasor agrees that the matters
released herein are not limited to matters which are known or
disclosed.
Releasor
acknowledges that factual matters now unknown to it may have given or may
hereafter give rise to claims which are presently unknown, unanticipated and
unsuspected, and it acknowledges that this Release has been negotiated and
agreed upon in light of that realization and that it nevertheless hereby intends
to release, discharge and acquit the Releasee from any such unknown
claims.
Acceptance of this Release shall not be
deemed or construed as an admission of liability by any party
released.
Releasor
acknowledges that either (a) it has had advice of counsel of its own choosing in
negotiations for and the preparation of this release, or (b) it has knowingly
determined that such advice is not needed.
DATED: ___________________
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Individual
Releasor:
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||
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[Name of
individual],
individually
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||
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Entity
Releasor:
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[Client
Name]
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By:
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||
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Name:
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Title:
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Page 11
of 13
EXHIBIT
B
[form of
notice to account debtor]
[LETTERHEAD
OF CRESTMARK COMMERCIAL CAPITAL LENDING LLC]
Date
{name and
address of account debtor}
Re: {Client’s
Name} (hereinafter referred to as “Client”)
Ladies
and Gentlemen:
We are
pleased to advise you that Client has been approved for a credit facility with
our company to help it expand its operations and to better serve its
customers. As is the requirement in our financing contract, all
present and future accounts have been assigned to us. To the extent
that you are now indebted or may in the future become indebted to Client on an
account, payment thereof is to be made to us and not to Client or any other
entity. The payments should be made payable in the following fashion
and mailed to:
Crestmark
Commercial Capital Lending LLC
for A/C
{Client’s Name}
▇.▇. ▇▇▇
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
This
letter may only be revoked by notification in writing signed by one of our
officers and acknowledged before a notary public.
Although
no authorization by the Client is required for us to send this notice to you, we
make it our practice to obtain such, and we have enclosed a copy for your
records. The original is on file with us.
Please do
not allow this letter to cause you any confusion, as this credit facility should
certainly enhance Client’s ability to better serve its customers and expand its
business.
This
letter is being faxed to you in order to expedite the process. We
would greatly appreciate your prompt attention and response.
Please
acknowledge receipt of this notification by signing and returning via fax to
▇▇▇-▇▇▇-▇▇▇▇.
Thank you
very much for your cooperation.
Sincerely,
Enclosure
Page 12
of 13
EXHIBIT
C
[authorization
to notify account debtors]
[LETTERHEAD
OF CLIENT]
(Date)
CRESTMARK
COMMERCIAL CAPITAL LENDING LLC
▇.▇. ▇▇▇
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Notice
of Assignment
Ladies
and Gentlemen:
This
letter will confirm that we have assigned our present and future accounts and
general intangibles to you, and we authorize you to send notice of this to any
insurance company, attorney, other third party payor, or any account debtor
(collectively, "Obligors").
We
understand that you may be sending a copy of this authorization to the Obligors,
together with a notice of assignment and payment instruction, and we waive any
claims which we may have against any Obligor arising out of their making payment
to you as set forth therein.
We also
authorize you to instruct any Obligor to make payment directly to you as
follows:
Crestmark
Commercial Capital Lending LLC
for A/C
{Client’s Name}
▇.▇. ▇▇▇
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
This
authorization is irrevocable until we have satisfied our obligations to you and
you have terminated all agreements with us.
|
Very
truly yours,
|
|||
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[client’s
name]
|
|||
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BY:
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|||
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NAME
|
|||
|
TITLE
|
|||
Page 13
of 13