EXHIBIT 10.65
AMENDED AND RESTATED SECURITY AGREEMENT
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AMENDED AND RESTATED SECURITY AGREEMENT, dated as of June 11, 1998, between
Pacific Direct Marketing Corp., a California corporation (the "Company"), and
BankBoston, N.A. (f/k/a The First National Bank of Boston), a national banking
association, as agent (hereinafter, in such capacity, the "Agent") for itself
and other banking institutions (hereinafter, collectively, the "Banks") which
are or may become parties to an Amended and Restated Revolving Credit and Term
Loan Agreement dated as of June 11, 1998 (as amended and in effect from time to
time, the "Credit Agreement"), among the Company, SalesLink Corporation
("SalesLink"), InSolutions Incorporated ("InSolutions" and collectively with
SalesLink, the "Borrowers"), the Banks and the Agent.
WHEREAS, SalesLink as well as certain other parties entered into a
Revolving Credit and Term Loan Agreement dated as of October 24, 1996 (such
agreement as heretofore amended and in effect from time to time, the "Original
Loan Agreement"); and
WHEREAS, in connection with the Original Loan Agreement, the Company
entered into a Guaranty dated as of October 24, 1996 and a Security Agreement
dated as of July 17, 1997 (such agreement as heretofore amended and in effect
form time to time, the "Original Security Agreement") in favor of BankBoston,
N.A. as agent for the lending institutions party to the Original Loan Agreement;
and
WHEREAS, the Company is expected to receive substantial direct and indirect
benefits from the extensions of credit by the Banks to the Borrowers pursuant to
the Credit Agreement; and
WHEREAS, the Original Loan Agreement will be superseded by the Credit
Agreement on the Closing Date (as defined in the Credit Agreement); and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement that the Company execute and deliver to the Agent, for the benefit of
the Banks and the Agent, a security agreement in substantially the form hereof;
and
WHEREAS, the Company desires to amend and restate all of its rights and
obligations under the Security Agreement and grant security interests in favor
of and as provided herein;
NOW, THEREFORE, in consideration of the promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
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1. DEFINITIONS. All capitalized terms used herein without definitions
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shall have the respective meanings provided therefor in the Credit Agreement.
All terms defined in the Uniform Commercial Code of the Commonwealth of
Massachusetts and used herein shall have the same definitions herein as
specified therein.
2. GRANT OF SECURITY INTEREST.
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2.1. COLLATERAL GRANTED. (a) The Company ratifies and affirms the
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grant of security interests made pursuant to the Original Security
Agreement and, (b) to the extent not covered under clause (a) hereof,
the Company further grants to the Agent, for the benefit of the Banks
and the Agent, to secure the payment and performance in full of all of
the Obligations (which includes the Company's obligations under the
Guaranty), a security interest in and so pledges and assigns to the
Agent, for the benefit of the Banks and the Agent, the following
properties, assets and rights of the Company, wherever located,
whether now owned or hereafter acquired or arising, and all proceeds
and products thereof (all of the same being hereinafter called the
"Collateral"):
All personal and fixture property of every kind and nature
including without limitation all furniture, fixtures, equipment,
raw materials, inventory, other goods, accounts, contract rights,
rights to the payment of money, insurance refund claims and all
other insurance claims and proceeds, tort claims, chattel paper,
documents, instruments, securities and other investment property,
deposit accounts and all general intangibles including, without
limitation, all tax refund claims, license fees, patents, patent
applications, trademarks, trademark applications, trade names,
copyrights, copyright applications, rights to ▇▇▇ and recover for
past infringement of patents, trademarks and copyrights, computer
programs, computer software, engineering drawings, service marks,
customer lists, goodwill, and all licenses, permits, agreements
of any kind or nature pursuant to which the Company possesses,
uses or has authority to possess or use property (whether
tangible or intangible) of others or others possess, use or have
authority to possess or use property (whether tangible or
intangible) of the Company, and all recorded data of any kind or
nature, regardless of the medium of recording including, without
limitation, all software, writings, plans, specifications and
schematics.
2.2. DELIVERY OF INSTRUMENTS, ETC.
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(a) Pursuant to the terms hereof, the Company has endorsed,
assigned and delivered to the Agent all negotiable or non-
negotiable instruments (including certificated securities) and
chattel paper pledged by it hereunder, together with instruments
of transfer or assignment duly executed in blank as the Agent may
have specified.
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In the event that the Company shall, after the date of this
Agreement, acquire any other negotiable or non-negotiable
instruments (including certificated securities) or chattel paper
to be pledged by it hereunder, the Company shall forthwith
endorse, assign and deliver the same to the Agent, accompanied by
such instruments of transfer or assignment duly executed in blank
as the Agent may from time to time specify.
(b) To the extent that any securities now or hereafter
acquired by the Company are uncertificated and are issued to the
Company or its nominee directly by the issuer thereof, the
Company shall cause the issuer to note on its books the security
interest of the Agent in such securities and shall cause the
issuer, pursuant to an agreement in form and substance
satisfactory to the Agent, to agree to comply with instructions
from the Agent as to such securities, without further consent of
the Company or such nominee. To the extent that any securities,
whether certificated or uncertificated, or other financial assets
now or hereafter acquired by the Company are held by the Company
or its nominee through a securities intermediary, the Company
shall (i) cause such securities intermediary to note on its books
the security interest of the Agent in such securities or other
financial assets and to confirm such notation promptly to the
Agent and (ii), at the request of the Agent, cause such
securities intermediary, pursuant to an agreement in form and
substance satisfactory to the Agent, to agree to comply with
entitlement orders or other instructions from the Agent as to
such securities or other financial assets, without further
consent of the Company or such nominee. The Agent agrees with the
Company that the Agent shall not give any such entitlement orders
or instructions to any such issuer or securities intermediary
unless an Event of Default has occurred and is continuing and the
Agent has elected to exercise its rights and remedies as
contemplated by (S)13.
2.3. EXCLUDED COLLATERAL. Notwithstanding the foregoing
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provisions of this (S)2, such grant of security interest shall not
extend to, and the term "Collateral" shall not include, any chattel
paper and general intangibles which are now or hereafter held by the
Company as licensee, lessee or otherwise, to the extent that (a) such
chattel paper and general intangibles are not assignable or capable of
being encumbered as a matter of law or under the terms of the license,
lease or other agreement applicable thereto (but solely to the extent
that any such restriction shall be enforceable under applicable law),
without the consent of the licensor or lessor thereof or other
applicable party thereto and (b) such consent has not been obtained;
provided, however, that the foregoing grant of security interest shall
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extend to, and the term "Collateral" shall include, (i) any and all
proceeds of such chattel paper and general intangibles to the extent
that the assignment or encumbering of such proceeds is not so
restricted and (ii) upon any such
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licensor, lessor or other applicable party consent with respect to any
such otherwise excluded chattel paper or general intangibles being
obtained, thereafter such chattel paper or general intangibles as well
as any and all proceeds thereof that might have theretofore have been
excluded from such grant of a security interest and the term
"Collateral".
2.4. STOCK PLEDGE AGREEMENT. Concurrently herewith SalesLink is
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executing and delivering to the Agent, for the benefit of the Banks
and the Agent, a stock pledge agreement pursuant to which SalesLink is
pledging to the Agent, for the benefit of the Banks and the Agent, all
the shares of the capital stock of SalesLink's subsidiary. Such pledge
shall be governed by the terms of such stock pledge agreement and not
by the terms of this Agreement
2.5. TRADEMARK ASSIGNMENTS. Concurrently herewith the Company
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is also executing and delivering to the Agent, for the benefit of the
Banks and the Agent, the Trademark Assignment pursuant to which the
Company is assigning to the Agent, for the benefit of the Banks and
the Agent, certain Collateral consisting of patents and patent rights
and trademarks, service marks and trademark and service ▇▇▇▇ rights,
together with the goodwill appurtenant thereto. The provisions of the
Trademark Assignment are supplemental to the provisions of this
Agreement, and nothing contained in the Trademark Assignment shall
derogate from any of the rights or remedies of the Agent or any of the
Banks hereunder. Nor shall anything contained in the Trademark
Assignment be deemed to prevent or extend the time of attachment or
perfection of any security interest in such Collateral created hereby.
3. TITLE TO COLLATERAL, ETC. The Company is the owner of the
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Collateral free from any adverse lien, security interest or other encumbrance,
except for the security interest created by this Agreement and other liens
permitted by the Credit Agreement. None of the Collateral constitutes, or is the
proceeds of, "farm products" as defined in (S)9-109(3) of the Uniform Commercial
Code of the Commonwealth of Massachusetts. None of the account debtors in
respect of any accounts, chattel paper or general intangibles and none of the
obligors in respect of any instruments included in the Collateral is a
governmental authority subject to the Federal Assignment of Claims Act.
4. CONTINUOUS PERFECTION. The Company's place of business or, if
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more than one, chief executive office is indicated on the Perfection Certificate
delivered to the Agent herewith (the "Perfection Certificate"). The Company will
not change the same, or the name, identity or corporate structure of the Company
in any manner, without providing at least 30 days prior written notice to the
Agent. The Collateral, to the extent not delivered to the Agent pursuant to
(S)2.2, will be kept at those locations listed on the Perfection Certificate and
the Company will not remove the Collateral from such locations, without
providing at least 30 days prior written notice to the Agent.
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5. NO LIENS. Except for the security interest herein granted and liens
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permitted by the Credit Agreement, the Company shall be the owner of the
Collateral free from any lien, security interest or other encumbrance, and the
Company shall defend the same against all claims and demands of all persons at
any time claiming the same or any interests therein adverse to the Agent or any
of the Banks. The Company shall not pledge, mortgage or create, or suffer to
exist a security interest in the Collateral in favor of any person other than
the Agent, for the benefit of the Banks and the Agent, except for liens
permitted by the Credit Agreement.
6. NO TRANSFERS. The Company will not sell or offer to sell or otherwise
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transfer the Collateral or any interest therein except for (a) sales and leases
of inventory and licenses of general intangibles in the ordinary course of
business and (b) sales or other dispositions of obsolescent items of equipment
in the ordinary course of business consistent with past practices.
7. INSURANCE.
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7.1. MAINTENANCE OF INSURANCE. The Company will maintain with
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financially sound and reputable insurers insurance with respect to its
properties and business against such casualties and contingencies as shall
be in accordance with general practices of businesses engaged in similar
activities in similar geographic areas. Such insurance shall be in such
minimum amounts that the Company will not be deemed a co-insurer under
applicable insurance laws, regulations and policies and otherwise shall be
in such amounts, contain such terms, be in such forms and be for such
periods as may be reasonably satisfactory to the Agent. In addition, all
such insurance shall be payable to the Agent as loss payee under a
"standard" or "New York" loss payee clause for the benefit of the Banks and
the Agent. Without limiting the foregoing, the Company will (a) keep all of
its physical property insured with casualty or physical hazard insurance on
an "all risks" basis, with broad form flood and earthquake coverages and
electronic data processing coverage, with a full replacement cost
endorsement and an "agreed amount" clause in an amount equal to 100% of the
full replacement cost of such property, (b) maintain all such workers'
compensation or similar insurance as may be required by law and (c)
maintain, in amounts and with deductibles equal to those generally
maintained by businesses engaged in similar activities in similar
geographic areas, general public liability insurance against claims of
bodily injury, death or property damage occurring, on, in or about the
properties of the Company; business interruption insurance; and product
liability insurance.
7.2. INSURANCE PROCEEDS. The proceeds of any casualty insurance
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in respect of any casualty loss of any of the Collateral shall, subject to
the rights, if any, of other parties with a prior interest in the property
covered thereby, (a) so long as no Default or Event of Default has occurred
and is continuing and to the extent that the amount of such proceeds is
less than
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$25,000, be disbursed to the Company for direct application by the Company
solely to the repair or replacement of the Company's property so damaged or
destroyed and (b) in all other circumstances, be held by the Agent as cash
collateral for the Obligations. The Agent may, at its sole option, disburse
from time to time all or any part of such proceeds so held as cash
collateral, upon such terms and conditions as the Agent may reasonably
prescribe, for direct application by the Company solely to the repair or
replacement of the Company's property so damaged or destroyed, or the Agent
may apply all or any part of such proceeds to the Obligations with the
Total Commitment (if not then terminated) being reduced by the amount so
applied to the Obligations.
7.3. NOTICE OF CANCELLATION, ETC. All policies of insurance shall
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provide for at least thirty (30) days prior written cancellation notice to
the Agent. In the event of failure by the Company to provide and maintain
insurance as herein provided, the Agent may, at its option, provide such
insurance and charge the amount thereof to the Company. The Company shall
furnish the Agent with certificates of insurance and policies evidencing
compliance with the foregoing insurance provision.
8. MAINTENANCE OF COLLATERAL; COMPLIANCE WITH LAW. The Company will keep
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the Collateral in good order and repair and will not use the same in violation
of law or any policy of insurance thereon. The Agent, or its designee, may
inspect the Collateral at any reasonable time, wherever located. The Company
will pay promptly when due all taxes, assessments, governmental charges and
levies upon the Collateral or incurred in connection with the use or operation
of such Collateral or incurred in connection with this Agreement. The Company
has at all times operated, and the Company will continue to operate, its
business in compliance with all applicable provisions of the federal Fair Labor
Standards Act, as amended, and with all applicable provisions of federal, state
and local statutes and ordinances dealing with the control, shipment, storage or
disposal of hazardous materials or substances.
9. COLLATERAL PROTECTION EXPENSES; PRESERVATION OF COLLATERAL.
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9.1. EXPENSES INCURRED BY AGENT. In its discretion, the Agent may
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discharge taxes and other encumbrances at any time levied or placed on any
of the Collateral, make repairs thereto and pay any necessary filing fees.
The Company agrees to reimburse the Agent on demand for any and all
expenditures so made. The Agent shall have no obligation to the Company to
make any such expenditures, nor shall the making thereof relieve the
Company of any default.
9.2. AGENT'S OBLIGATIONS AND DUTIES. Anything herein to the
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contrary notwithstanding, the Company shall remain liable under each
contract or agreement comprised in the Collateral to be observed or
performed by the Company thereunder. Neither the Agent nor any Bank
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shall have any obligation or liability under any such contract or agreement
by reason of or arising out of this Agreement or the receipt by the Agent
or any Bank of any payment relating to any of the Collateral, nor shall the
Agent or any Bank be obligated in any manner to perform any of the
obligations of the Company under or pursuant to any such contract or
agreement, to make inquiry as to the nature or sufficiency of any payment
received by the Agent or any Bank in respect of the Collateral or as to the
sufficiency of any performance by any party under any such contract or
agreement, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to the Agent or to which the Agent or any Bank may be entitled at
any time or times. The Agent's sole duty with respect to the custody, safe
keeping and physical preservation of the Collateral in its possession,
under (S)9-207 of the Uniform Commercial Code of the Commonwealth of
Massachusetts or otherwise, shall be to deal with such Collateral in the
same manner as the Agent deals with similar property for its own account.
10. SECURITIES AND DEPOSITS. The Agent may at any time, at its option,
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transfer to itself or any nominee any securities constituting Collateral,
receive any income thereon and hold such income as additional Collateral or
apply it to the Obligations. Whether or not any Obligations are due, the Agent
may demand, ▇▇▇ for, collect, or make any settlement or compromise which it
deems desirable with respect to the Collateral. Regardless of the adequacy of
Collateral or any other security for the Obligations, any deposits or other sums
at any time credited by or due from the Agent or any Bank to the Company may at
any time be applied to or set off against any of the Obligations.
10.1. NOTIFICATION TO ACCOUNT DEBTORS AND OTHER OBLIGORS. If an Event of
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Default shall have occurred and be continuing, the Company shall, at the request
of the Agent, notify account debtors on accounts, chattel paper and general
intangibles of the Company and obligors on instruments for which the Company is
an obligee of the security interest of the Agent in any account, chattel paper,
general intangible or instrument and that payment thereof is to be made directly
to the Agent or to any financial institution designated by the Agent as the
Agent's agent therefor, and the Agent may itself, if an Event of Default shall
have occurred and be continuing, without notice to or demand upon the Company,
so notify account debtors and obligors. After the making of such a request or
the giving of any such notification, the Company shall hold any proceeds of
collection of accounts, chattel paper, general intangibles and instruments
received by the Company as trustee for the Agent, for the benefit of the Banks
and the Agent, without commingling the same with other funds of the Company and
shall turn the same over to the Agent in the identical form received, together
with any necessary endorsements or assignments. The Agent shall apply the
proceeds of collection of accounts, chattel paper, general intangibles and
instruments received by the Agent to the Obligations, such proceeds to be
immediately entered after final payment in cash or solvent credits of the items
giving rise to them.
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11. FURTHER ASSURANCES. The Company, at its own expense, shall do, make,
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execute and deliver all such additional and further acts, things, deeds,
assurances and instruments as the Agent may require more completely to vest in
and assure to the Agent and the Banks their respective rights hereunder or in
any of the Collateral, including, without limitation, (i) executing, delivering
and, where appropriate, filing financing statements and continuation statements
under the Uniform Commercial Code, (ii) obtaining governmental and other third
party consents and approvals, including without limitation any consent of any
licensor, lessor or other applicable party referred to in (S)2.3, (iii)
obtaining waivers from mortgagees and landlords and (iv) taking all actions
required by Sections 8-313 and 8-321 of the Uniform Commercial Code (1990) or
Sections 8-106 and 9-115 of the Uniform Commercial Code (1994), as applicable in
each relevant jurisdiction, with respect to certificated and uncertificated
securities.
12. POWER OF ATTORNEY.
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12.1. APPOINTMENT AND POWERS OF AGENT. The Company hereby
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irrevocably constitutes and appoints the Agent and any officer or agent
thereof, with full power of substitution, as its true and lawful attorneys-
in-fact with full irrevocable power and authority in the place and stead of
the Company or in the Agent's own name, for the purpose of carrying out the
terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments that may be necessary or
desirable to accomplish the purposes of this Agreement and, without
limiting the generality of the foregoing, hereby gives said attorneys the
power and right, on behalf of the Company, without notice to or assent by
the Company, to do the following:
(a) upon the occurrence and during the continuance of an Event
of Default, generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral in such
manner as is consistent with the Uniform Commercial Code of the
Commonwealth of Massachusetts and as fully and completely as though
the Agent were the absolute owner thereof for all purposes, and to do
at the Company' expense, at any time, or from time to time, all acts
and things which the Agent deems necessary to protect, preserve or
realize upon the Collateral and the Agent's security interest therein,
in order to effect the intent of this Agreement, all as fully and
effectively as the Company might do, including, without limitation,
(i) the filing and prosecuting of registration and transfer
applications with the appropriate federal or local agencies or
authorities with respect to trademarks, copyrights and patentable
inventions and processes, (ii) upon written notice to the Company, the
exercise of voting rights with respect to voting securities, which
rights may be exercised, if the Agent so elects, with a view to
causing the liquidation in a commercially reasonable manner of assets
of the issuer of any such securities and (iii) the execution, delivery
and
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recording, in connection with any sale or other disposition of any
Collateral, of the endorsements, assignments or other instruments of
conveyance or transfer with respect to such Collateral; and
(b) to file such financing statements with respect hereto, with
or without the Company's signature, or a photocopy of this Agreement
in substitution for a financing statement, as the Agent may deem
appropriate and to execute in the Company's name such financing
statements and amendments thereto and continuation statements which
may require the Company's signature.
12.2. RATIFICATION BY COMPANY. To the extent permitted by law, the
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Company hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with
an interest and shall be irrevocable.
12.3. NO DUTY ON AGENT. The powers conferred on the Agent hereunder
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are solely to protect the interests of the Agent and the Banks in the
Collateral and shall not impose any duty upon the Agent to exercise any
such powers. The Agent shall be accountable only for the amounts that it
actually receives as a result of the exercise of such powers and neither it
nor any of its officers, directors, employees or agents shall be
responsible to the Company for any act or failure to act, except for the
Agent's own gross negligence or willful misconduct.
13. REMEDIES. If an Event of Default shall have occurred and be
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continuing, the Agent may, without notice to or demand upon the Company, declare
this Agreement to be in default, and the Agent shall thereafter have in any
jurisdiction in which enforcement hereof is sought, in addition to all other
rights and remedies, the rights and remedies of a secured party under the
Uniform Commercial Code, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Agent may, so far as the
Company can give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom. The Agent may in its
discretion require the Company to assemble all or any part of the Collateral at
such location or locations within the state(s) of the Company's principal
office(s) or at such other locations as the Agent may designate. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Agent shall give to the
Company at least five Business Days prior written notice of the time and place
of any public sale of Collateral or of the time after which any private sale or
any other intended disposition is to be made. The Company hereby acknowledges
that five Business Days prior written notice of such sale or sales shall be
reasonable notice. In addition, the Company waives any and all rights that it
may have to a judicial hearing in advance of the enforcement of any of the
Agent's rights hereunder, including, without limitation, its right following an
Event of Default to take immediate possession of the Collateral and to exercise
its rights with respect thereto. To the extent that any of the Obligations are
to be paid or performed by a
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person other than the Company, the Company waives and agrees not to assert any
rights or privileges which it may have under (S)9-112 of the Uniform Commercial
Code of the Commonwealth of Massachusetts.
14. NO WAIVER, ETC. The Company waives demand, notice, protest, notice of
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acceptance of this Agreement, notice of loans made, credit extended, Collateral
received or delivered or other action taken in reliance hereon and all other
demands and notices of any description. With respect to both the Obligations and
the Collateral, the Company assents to any extension or postponement of the time
of payment or any other indulgence, to any substitution, exchange or release of
or failure to perfect any security interest in any Collateral, to the addition
or release of any party or person primarily or secondarily liable, to the
acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as the
Agent may deem advisable. The Agent shall have no duty as to the collection or
protection of the Collateral or any income thereon, nor as to the preservation
of rights against prior parties, nor as to the preservation of any rights
pertaining thereto beyond the safe custody thereof as set forth in (S)9.2. The
Agent shall not be deemed to have waived any of its rights upon or under the
Obligations or the Collateral unless such waiver shall be in writing and signed
by the Agent with the consent of the Majority Banks. No delay or omission on the
part of the Agent in exercising any right shall operate as a waiver of such
right or any other right. A waiver on any one occasion shall not be construed as
a bar to or waiver of any right on any future occasion. All rights and remedies
of the Agent with respect to the Obligations or the Collateral, whether
evidenced hereby or by any other instrument or papers, shall be cumulative and
may be exercised singularly, alternatively, successively or concurrently at such
time or at such times as the Agent deems expedient.
15. MARSHALLING. Neither the Agent nor any Bank shall be required to
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marshal any present or future collateral security (including but not limited to
this Agreement and the Collateral) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Agent hereunder and of the Agent or any Bank in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, the Company hereby agrees that it will not invoke any law relating to the
marshalling of collateral which might cause delay in or impede the enforcement
of the Agent's rights under this Agreement or under any other instrument
creating or evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
the Company hereby irrevocably waives the benefits of all such laws.
16. PROCEEDS OF DISPOSITIONS; EXPENSES. The Company shall pay to the
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Agent on demand any and all expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by the Agent in protecting, preserving or
enforcing
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the Agent's rights under or in respect of any of the Obligations or any of the
Collateral. After deducting all of said expenses, the residue of any proceeds of
collection or sale of the Obligations or Collateral shall, to the extent
actually received in cash, be applied to the payment of the Obligations in such
order or preference as the Bank may determine or in such order or preference as
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is provided in the Credit Agreement, proper allowance and provision being made
for any Obligations not then due. Upon the final payment and satisfaction in
full of all of the Obligations and after making any payments required by Section
9-504(1)(c) of the Uniform Commercial Code of the Commonwealth of Massachusetts,
any excess shall be returned to the Company, and the Company shall remain liable
for any deficiency in the payment of the Obligations.
17. OVERDUE AMOUNTS. Until paid, all amounts due and payable by the
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Company hereunder shall be a debt secured by the Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
18. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT IS INTENDED TO
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TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Company
agrees that any suit for the enforcement of this Agreement may be brought in the
courts of the Commonwealth of Massachusetts or any federal court sitting therein
and consents to the non-exclusive jurisdiction of such court and to service of
process in any such suit being made upon the Company by mail at the address
specified in the signature page of the Credit Agreement. The Company hereby
waives any objection that it may now or hereafter have to the venue of any such
suit or any such court or that such suit is brought in an inconvenient court.
19. WAIVER OF JURY TRIAL. THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL
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WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF
ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, the Company waives
any right which it may have to claim or recover in any litigation referred to in
the preceding sentence any special, exemplary, punitive or consequential damages
or any damages other than, or in addition to, actual damages. The Company (i)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers and (ii) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent or any Bank is a
party, the Agent and the Banks are relying upon, among other things, the waivers
and certifications contained in this (S)19.
20. MISCELLANEOUS. The headings of each section of this Agreement are for
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convenience only and shall not define or limit the provisions thereof. This
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Agreement and all rights and obligations hereunder shall be binding upon the
Company and its respective successors and assigns, and shall inure to the
benefit of the Agent, the Banks and their respective successors and assigns. If
any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein. The
Company acknowledges receipt of a copy of this Agreement.
21. TRANSITIONAL ARRANGEMENTS. This Amended and Restated Security
-------------------------
Agreement shall supersede the Original Security Agreement on the Closing Date.
On the Closing Date, the rights and obligations of the respective parties under
the Original Security Agreement shall be subsumed within and governed by this
Amended and Restated Security Agreement; provided, that the provisions of the
Original Security Agreement shall remain in full force and effect prior to the
Closing Date, and that the liens granted pursuant to the Original Security
Agreement shall continue to be in effect hereunder as set forth in (S)2.1
hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Company has caused
this Agreement to be duly executed as of the date first above written.
PACIFIC DIRECT MARKETING CORP.
By:________________________________
Title:
Accepted:
BANKBOSTON, N.A.
(f/k/a The First National
Bank of Boston),
as Agent
By:____________________________
Title:
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS___________ )
) ss.
COUNTY OF SUFFOLK_______________________ )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this _______ day of June, 1998, personally appeared
________________________ to me known personally, and who, being by me duly
sworn, deposes and says that he is the ______________________ of Pacific Direct
Marketing Corp., and that said instrument was signed and sealed on behalf of
said corporation by authority of its Board of Directors, and said
____________________________ acknowledged said instrument to be the free act and
deed of said corporation.
___________________________________
Notary Public
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