Exhibit 10.2.6
AGREEMENT
THIS AGREEMENT is dated as of the 13th day of August, 2003 between the parties
listed on the execution pages hereof.
RECITALS:
A. Maxxcom Inc., a corporation incorporated under the laws of the
Province of Ontario ("Maxxcom"), and Maxxcom Inc., a corporation
incorporated under the laws of the State of Delaware ("Maxxcom US"),
as borrowers, various subsidiaries of Maxxcom and Maxxcom US, as
guarantors, The Bank of Nova Scotia, as agent, and the Lenders (as
defined therein) are parties to the Second Amended and Restated
Credit Agreement dated as of 11 July 2001, as amended by the first
amendment agreement made as of 31 March 2002, the second amendment
agreement made as of 30 June 2002 and the third amendment agreement
made as of 28 October 2002 (as further amended, supplemented,
restated or replaced from time to time, the "Credit Agreement").
B. Osprey London Limited ("Osprey") and Interfocus Group Limited (then
known as Sevco 1156 Limited), a Restricted Party under the Credit
Agreement, entered into an asset purchase agreement (the "Asset
Purchase Agreement") dated 5 September 2000 under which Interfocus
Group Limited agreed to purchase the business of Osprey, which
agreement provided for, inter alia, deferred compensation to be paid
to Osprey in certain circumstances.
C. Interfocus Group Limited and Osprey have been unable to agree as to
the amount of the deferred compensation payable under the Asset
Purchase Agreement with the result that Osprey invoked the dispute
settlement mechanism in the Asset Purchase Agreement under which an
expert was to make a determination of the gross income of Interfocus
Group Limited for certain periods, on which the calculation of the
deferred compensation payable would be based.
D. On 27 June 2003 the expert appointed under the Asset Purchase
Agreement made its determination with the result that Interfocus
Group Limited owes Osprey the amount of (pound)464,193.80, which
determination is final and binding upon both Interfocus Group Limited
and Osprey.
E. On 15 July 2003 Osprey issued a Statutory Demand under the Insolvency
Xxx 0000 (England) against Interfocus Group Limited demanding payment
of the amount of (pound)464,193.80, failure of payment of which prior
to the expiry of the Statutory Demand would entitle Osprey to issue a
winding-up petition against Interfocus Group Limited.
F. Interfocus Group Limited did not pay the amount of (pound)464,193.80
to Osprey prior to the expiry of the Statutory Demand on 6 August
2003 and, on 8 August 2003, Osprey issued a winding-up petition
against Interfocus Group Limited and served such winding-up petition
on Interfocus Group Limited on the same day.
G. Osprey is entitled to publish notice of its application for the
winding-up of Interfocus Group Limited after 15 August 2003.
H. Maxxcom has advised the Agent that it intends to undertake a series
of steps and enter into a series of transactions which are detailed
in Appendix A and are referred to herein, collectively, as the
"Pre-Packaged Receivership".
I. Maxxcom has further advised the Agent that it is entitled to
implement the Pre-Packaged Receivership under English law and that
taking the steps and entering into the transactions contemplated by
the Pre-Packaged Receivership is, in light of the circumstances, the
most effective means by which to preserve the business of Interfocus
Group Limited and its primary operating subsidiary, Interfocus
Network Limited.
J. Maxxcom has requested that the Lenders waive certain Pending Events
of Default (as defined in the Credit Agreement) and Events of Default
(as defined in the Credit Agreement) that could result from the facts
set forth in the recitals above and the implementation of the
Pre-Packaged Receivership.
K. The Lenders have agreed to accommodate the requests of Maxxcom in
relation to the Pre-Packaged Receivership on the terms and conditions
set forth herein.
FOR VALUE RECEIVED and intending to be legally bound by this
Agreement, the parties hereby agree as follows:
Section 1 - Interpretation
Capitalized terms used herein, unless otherwise defined or indicated
herein (including in Appendix B), have the respective meanings defined in the
Credit Agreement.
Section 2 - Recitals
Each of the Borrowers and the Guarantors acknowledge and agree that
the Recitals to this Agreement are true in substance and in fact.
Section 3 - Forbearances
If Maxxcom proceeds with the implementation of the Pre-Packaged
Receivership, the Lenders agree, subject to Sections 4, 5 and 6 hereof, that
they will not take steps to accelerate the Obligations under the Credit
Agreement pursuant to Section 8.2 thereof or take steps to enforce any of the
Security (as defined in the Credit Agreement) in relation to the facts
described in the Recitals to this Agreement on the basis that:
(a) Interfocus Group Limited has ceased or threatened to cease
carrying on its business, admitted its inability to pay its
debts generally or otherwise acknowledged its insolvency in
writing under Section 8.1(f) of the Credit Agreement;
(b) Interfocus Group Limited has permitted a material default
under one or more agreements or instruments relating to
indebtedness in the aggregate amount of more than Cdn.
$500,000 and was unable to cure or satisfy such default
within the applicable grace period specified in such
agreement under Section 8.1(h) of the Credit Agreement;
(c) Interfocus Network Limited has permitted a material default
under one or more agreements or instruments relating to
indebtedness in the aggregate amount of more than Cdn.
$500,000 and was unable to cure or satisfy such default
within the applicable grace period specified in such
agreement under Section 8.1 (h) of the Credit Agreement;
(d) Interfocus Group Limited has become subject to a proceeding
seeking the appointment of a receiver which has a material
and adverse effect on a material part of its Property under
Section 8.1(i)(iii) of the Credit Agreement; or
(e) that Interfocus Group Limited has become subject to a
settlement in respect of a claim or action under which it
has an obligation to pay an amount in excess of Cdn.
$1,000,000 under Section 8.1(1) of the Credit Agreement.
Section 4 - Restricted Party Undertakings
Maxxcom shall:
(a) on or prior to 14 August 2003, deliver or cause to be
delivered to the Agent, for and on behalf of the Lenders,
item (h) in the definition of Outstanding Documents (as
defined in Appendix B) and, on or prior to 22 August 2003,
each of the other Outstanding Documents, all such
documentation to be in form and substance satisfactory to
the Agent;
(b) on or prior to 7 September 2003, deliver or cause to be
delivered to the Agent, for and on behalf of the Lenders,
all of the New Interfocus Documentation (as defined in
Appendix B), all such documentation to be in form and
substance satisfactory to the Agent;
(c) on or prior to 7 September 2003, deliver or cause to be
delivered to the Agent, for and on behalf of the Lenders,
each of the New Interfocus Opinions (as defined in Appendix
B), all such documentation to be form and substance
satisfactory to the Agent;
(d) on or prior to 7 September 2003, deliver or cause to be
delivered to the Agent, for and on behalf of the Lenders,
all of the Newco Documentation (as defined in Appendix B),
all such documentation to be in form and substance
satisfactory to the Agent;
(e) on or prior to 7 September 2003, deliver or cause to be
delivered all such further documentation as the Agent may
reasonably require in connection with the Outstanding
Documents, the New Interfocus Documentation, the New
Interfocus Opinions and the Newco Documentation, all such
documentation to be in form and substance satisfactory to
the Agent; and
(f) on or prior to 7 September 2003, deliver or cause to be
delivered to the Agent, for and on behalf of the Lenders,
copies of all documentation executed and delivered in
relation to the Pre-Packaged Receivership or otherwise
evidencing the steps and transaction comprising the
Pre-Packaged Receivership.
Section 5 - No Further Forbearance
The forbearances provided for in Section 3 shall immediately
terminate and cease, and be of no further force or effect, upon the occurrence
of any of the following events:
(a) the failure by any Restricted Party or Newco to deliver any
of the material contemplated in Section 4 within the time
limits set forth therein or, without limitation of the
foregoing, any other default in compliance by any Restricted
Party with respect to any of its obligations under this
Agreement; or
(b) the implementation of the Pre-Packaged Receivership in a
manner or order other than as described in Appendix A
including, without limitation, taking any step or entering
into any transaction which is not described in Appendix A;
or
(c) there being any defect in any of the Existing
Maxxcom/Interfocus Security; or
(d) should any of the Recitals be untrue in substance or in
fact; or
(e) should all of the steps and transactions comprising the
Pre-Packaged Receivership not be completed on or prior to 15
August 2003 for any reason;
(f) should the Pre-Packaged Receivership or any step or part
thereof, or the implementation thereof, or any part thereof,
be challenged, contested or otherwise disputed by any
Person, by any means available to such Person and such
challenge not be disposed of within six months of the date
such challenge is made; or
(g) should the value of (i) the assets of Interfocus Group
Limited on a consolidated basis or (ii) the shares of
Interfocus Network Limited, be greater than the amount of
the indebtedness owed by Interfocus Group Limited to
Maxxcom; or
(h) should any action be brought or claim be made, by any
Person, against Maxxcom or any other Restricted Party (other
than Interfocus Group Limited, Interfocus Network Limited or
any subsidiary of Interfocus Network Limited) in relation to
the matters disclosed in the Recitals to this Agreement, the
Pre-Packaged Receivership or the letter agreement dated 5
September 2000 between Maxxcom and Sevco 1156 Limited (now
Interfocus Group Limited) relating to certain funding
obligations of Maxxcom; or
(i) the occurrence of any other Pending Event of Default or
Event of Default under the Credit Agreement.
Section 6 - Forbearance Limited
The forbearances provided for in Section 3 apply only to the facts
set forth in the Recitals to this Agreement and shall not apply to, and shall
in no way restrict, any rights of the Agent or the Lenders in any other
circumstances whatsoever, all of which rights are expressly reserved.
Section 7 - Conditions Precedent to Effectiveness of this Agreement
This Agreement shall become binding on the Lenders only upon
satisfaction of the following conditions precedent:
(a) due execution and delivery of this Agreement by each of the
Borrowers and the Guarantors;
(b) due execution and delivery of this Agreement by the Majority
Lenders in accordance with Section 9.9 of the Credit
Agreement;
(c) the Agent having received, for the account of each of the
consenting Lenders, an amendment fee of Cdn. $60,000 (being
10 basis points of the Credit Limit), to be paid in
accordance with their respective Proportionate Shares;
(d) the Agent being satisfied that there exists no Event of
Default or Pending Event of Default, other than the Pending
Events of Default and/or the Events of Default described in
Section 3, as at the date of execution of this Agreement;
and
(e) the Agent having received evidence, reasonably satisfactory
to it, that the Mezz Agent and the Mezz Holders have, for
the purposes of the Mezz Debenture, consented to each of the
matters set forth in this Agreement or that such consent is
not required under the Mezz Debenture, the Agent being
satisfied with the other amendments to the Mezz Credit
Documents made in that connection and having been provided
with executed copies of all such documentation.
Section 8 - Continuing Effect of Credit Agreement
The Credit Agreement and each of the other Credit Documents shall
remain in full force and effect, without amendment, and is hereby ratified and
confirmed. Each of the Borrowers and the Guarantors confirms that the
guarantees and Security made or granted by it pursuant to the Credit Agreement
remains in full force and effect notwithstanding the forbearance to the
provisions of the Credit Agreement contained herein.
Section 9 - Severability
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidation of the
remaining provisions hereof or affecting the validity or enforceability of
such provision in any other jurisdictions.
Section 10 - Successors and Assigns
This Agreement shall enure to the benefit of and be binding upon the
parties and their respective successors and assigns.
Section 11 - Amendments
This Agreement may be modified, cancelled or extended at any time,
but only with the written consent and agreement of the Majority Lenders and
each of the Borrowers and the Guarantors.
Section 12 - Further Assurances
Each of the Borrowers and the Guarantors shall promptly do, make,
execute or deliver, or cause to be done, made, executed or delivered, all such
further acts, documents and things as the Agent may require from time to time
for the purposes of giving effect to this Agreement and shall use reasonable
efforts and take all such steps as may be within its power to implement, to
the full extent, the provisions of this Agreement.
Section 13 - Counterparts and Facsimile
This Agreement may be executed in any number of counterparts, each of
which when executed and delivered shall be deemed to be an original and such
counterparts together shall constitute one and the same agreement. For the
purposes of this Section, the delivery of a facsimile copy of an executed
counterpart of this Agreement shall be deemed to be valid execution and
delivery thereof.
Section 14 - Governing Law
The parties agree that this Agreement shall be conclusively deemed to
be a contract made under, and shall for all purposes be governed by and
construed in accordance with the laws of the Province of Ontario and the laws
of Canada applicable in the Province of Ontario.
[Execution Pages Follow]
IN WITNESS OF WHICH, the parties have executed this Agreement.
THE LENDERS
-----------
THE BANK OF NOVA SCOTIA THE BANK OF NOVA SCOTIA, by its Atlanta Agency
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
CANADIAN IMPERIAL BANK OF COMMERCE CIBC INC.
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
(CIBC World Markets Corp., as agent for C113C
Inc.)
By: ____________________________________________
Name:
Title:
BANK OF MONTREAL BANK OF MONTREAL, by its Chicago
branch
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
XXXXX XXXX XX XXXXXX XXXXX XXXX XX XXXXXX, by its Grand Cayman (North
America No. 1)
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
-7-
IN WITNESS OF WHICH, the parties have executed this Agreement.
THE LENDERS
-----------
THE BANK OF NOVA SCOTIA THE BANK OF NOVA SCOTIA, by its Atlanta Agency
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
CANADIAN IMPERIAL BANK OF COMMERCE CIBC INC.
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
(CIBC World Markets Corp., as agent for C113C
Inc.)
By: ____________________________________________
Name:
Title:
BANK OF MONTREAL BANK OF MONTREAL, by its Chicago
branch
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
XXXXX XXXX XX XXXXXX XXXXX XXXX XX XXXXXX, by its Grand Cayman (North
America No. 1)
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
IN WITNESS OF WHICH, the parties have executed this Agreement.
THE LENDERS
-----------
THE BANK OF NOVA SCOTIA THE BANK OF NOVA SCOTIA, by its Atlanta Agency
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
CANADIAN IMPERIAL BANK OF COMMERCE CIBC INC.
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
(CIBC World Markets Corp., as agent for C113C
Inc.)
By: ____________________________________________
Name:
Title:
BANK OF MONTREAL BANK OF MONTREAL, by its Chicago
branch
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
XXXXX XXXX XX XXXXXX XXXXX XXXX XX XXXXXX, by its Grand Cayman (North
America No. 1)
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
-7-
IN WITNESS OF WHICH, the parties have executed this Agreement.
THE LENDERS
-----------
THE BANK OF NOVA SCOTIA THE BANK OF NOVA SCOTIA, by its Atlanta Agency
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
CANADIAN IMPERIAL BANK OF COMMERCE CIBC INC.
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
(CIBC World Markets Corp., as agent for C113C
Inc.)
By: ____________________________________________
Name:
Title:
BANK OF MONTREAL BANK OF MONTREAL, by its Chicago
branch
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
XXXXX XXXX XX XXXXXX XXXXX XXXX XX XXXXXX, by its Grand Cayman (North
America No. 1)
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
IN WITNESS OF WHICH, the parties have executed this Agreement.
THE LENDERS
-----------
THE BANK OF NOVA SCOTIA THE BANK OF NOVA SCOTIA, by its Atlanta Agency
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
CANADIAN IMPERIAL BANK OF COMMERCE CIBC INC.
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
(CIBC World Markets Corp., as agent for C113C
Inc.)
By: ____________________________________________
Name:
Title:
BANK OF MONTREAL BANK OF MONTREAL, by its Chicago
branch
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
XXXXX XXXX XX XXXXXX XXXXX XXXX XX XXXXXX, by its Grand Cayman (North
America No. 1)
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
IN WITNESS OF WHICH, the parties have executed this Agreement.
THE LENDERS
-----------
THE BANK OF NOVA SCOTIA THE BANK OF NOVA SCOTIA, by its Atlanta Agency
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
CANADIAN IMPERIAL BANK OF COMMERCE CIBC INC.
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
(CIBC World Markets Corp., as agent for C113C
Inc.)
By: ____________________________________________
Name:
Title:
BANK OF MONTREAL BANK OF MONTREAL, by its Chicago
branch
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
XXXXX XXXX XX XXXXXX XXXXX XXXX XX XXXXXX, by its Grand Cayman (North
America No. 1)
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
IN WITNESS OF WHICH, the parties have executed this Agreement.
THE LENDERS
-----------
THE BANK OF NOVA SCOTIA THE BANK OF NOVA SCOTIA, by its Atlanta Agency
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
CANADIAN IMPERIAL BANK OF COMMERCE CIBC INC.
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
(CIBC World Markets Corp., as agent for C113C
Inc.)
By: ____________________________________________
Name:
Title:
BANK OF MONTREAL BANK OF MONTREAL, by its Chicago
branch
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
XXXXX XXXX XX XXXXXX XXXXX XXXX XX XXXXXX, by its Grand Cayman (North
America No. 1)
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
THE TORONTO-DOMINION BANK TORONTO DOMINION (TEXAS), INC.
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
THE TORONTO-DOMINION BANK TORONTO DOMINION (TEXAS), INC.
By: ____________________________________________ By: _______________________________________________
Name: Name:
Title: Title:
THE BORROWERS
-------------
MAXXCOM INC., an Ontario corporation MAXXCOM INC., a Delaware corporation
By: ____________________________________________ By: _______________________________________________
X. Xxxxxx X. Xxxxxx
Authorized Signing Officer Authorized Signing Officer
By: ____________________________________________ By: _______________________________________________
X. Xxxxxxx X. Xxxxxxx
Authorized Signing Officer Authorized Signing Officer
THE GUARANTORS
MAXXCOM (NOVA SCOTIA) CORP BRATSKEIR & COMPANY, INC.
MAXXCOM (USA) FINANCE CPB ACQUISITION INC.
COMPANY CORMARK COMMUNICATIONS INC.
MAXXCOM (USA) HOLDINGS INC. XXXXXXXX & PARTNERS
1220777 ONTARIO LIMITED COMMUNICATIONS LTD.
1385544 ONTARIO LIMITED XXXXXXX XXXX XXXXXX XXXXXXX
2026646 ONTARIO LIMITED INC. INC.
MAXXCOM INTERACTIVE INC. STUDIO TYPE INC.
MF+P ACQUISITION CO.
SMI ACQUISITION CO
ACCENT ACQUISITION CO.
FMA ACQUISIT CO.
By: ____________________________________________ By: _______________________________________________
X. Xxxxxx X. Xxxxxxx
Authorized Signing Officer Authorized Signing Officer
MACKENZIE MARKETING, INC. TC ACQUISITION INC.
XXXXXXXX DIRECT, INC.
By: ____________________________________________
X. Xxxxxx
Authorized Signing Officer
APPENDIX A
DESCRIPTION OF PRE-PACKAGED RECEIVERSHIP
1. Newco is incorporated under the laws of England on 24 June 2003 and
on 14 August 2003
2. issues one share in its capital stock to Maxxcom for(pound)1, such
that Newco is wholly-owned by Maxxcom.
3. Maxxcom delivers a letter dated 13 August 2003 to Interfocus Network
Limited
4. demanding that Interfocus Network Limited repay the intercompany loan
owing to Maxxcom in the amount of(pound)625,000 (the "INL
Intercompany Loan").
5. The Board of Directors of Interfocus Network Limited, at a meeting
properly constituted
6. and with the Maxxcom appointees to the Board declaring their
interests in the matter under consideration, meets on 14 August 2003
to consider the demand letter received from Maxxcom, concludes that
Interfocus Network Limited is unable to meet the demand and
authorizes Interfocus Network Limited to respond to the demand letter
to such effect.
7. Interfocus Network Limited delivers a letter dated 14 August 2003 to
Maxxcom stating
8. that it is unable to repay the INL Intercompany Loan.
9. Maxxcom delivers a letter dated 14 August 2003 to Interfocus Group
Limited demanding
10. that Interfocus Group Limited repay the intercompany loan owing to
Maxxcom in the amount of (pound)2,530,033 (the "IGL Intercompany
Loan"), which is immediately due and payable, as a result of the
failure of Interfocus Network Limited to repay the INL Intercompany
Loan.
11. The Board of Directors of Interfocus Group Limited, at a meeting
properly constituted and
12. with the Maxxcom appointees to the Board declaring their interests in
the matters under consideration, meets on 14 August 2003 to consider
the demand letter received from Maxxcom, concludes that Interfocus
Group Limited is unable to meet the demand and authorizes Interfocus
Group Limited to respond to the demand letter to such effect, further
authorizes Maxxcom to appoint a receiver for Interfocus Group Limited
and further authorizes the cooperation of Interfocus Group Limited
with the appointed receiver.
13. Interfocus Group Limited delivers a letter dated 14 August 2003 to
Maxxcom stating that
14. it is unable to repay the IGL Intercompany Loan.
15. Interfocus Group Limited delivers a letter dated 15 August 2003 to
Maxxcom requesting
16. the appointment of Xxxxx Xxxxxxxx as receiver of Interfocus Group
Limited.
17. Maxxcom makes the Instrument of Appointment dated 15 August 2003
appointing Xxxxx
18. Xxxxxxxx as receiver of Interfocus Group Limited.
19. Xxxxx Xxxxxxxx accepts its appointment as receiver of Interfocus
Group Limited by way
20. of an Acceptance Letter dated 15 August 2003.
21. -2-
22. Newco, Interfocus Group Limited (In Administrative Receivership) and
the Receivers (as
23. defined therein) enter into the Warranty Deed dated 15 August 2003
whereby Maxxcom, for and on behalf of its Representatives (as defined
therein) make certain representations and warranties in connection
with the sale by Interfocus Group Limited (In Administrative
Receivership) of the sale 25,000 ordinary shares of Interfocus
Network Limited to Newco and the sale of 142,856 ordinary shares of
Interfocus Direct Limited and 14,250 ordinary shares and 3,750 "C"
shares of Interfocus Technology Group Limited to Interfocus Network
Limited.
24. Interfocus Network Limited, Interfocus Group Limited (In
Administrative Receivership)
25. and the Receivers (as defined therein) enter into the Share Purchase
Agreement dated 15 August 2003 whereby Interfocus Group Limited (In
Administrative Receivership) sells 142,856 ordinary shares of
Interfocus Direct Limited for (pound)1 and 14,250 ordinary shares and
3,750 "C" shares of Interfocus Technology Group Limited for (pound)1
to Interfocus Network Limited. Receipt of the amount of (pound)2 paid
in cash by Newco to complete the acquisition of the shares of
Interfocus Direct Limited and Interfocus Technology Group Limited is
acknowledged by Interfocus Group Limited (In Administrative
Receivership) therein.
26. Newco, Interfocus Group Limited (In Administrative Receivership) and
the Receivers (as
27. defined therein) enter into the Share Purchase Deed dated 15 August
2003 whereby Interfocus Group Limited (In Administrative
Receivership) sells 25,000 ordinary shares of Interfocus Network
Limited to Newco for (pound)2,250,000 (the "INL Share Purchase
Deed").
28. Maxxcom and Newco enter into the Deed of Undertaking dated 15 August
2003 whereby
29. Maxxcom agrees to satisfy the amount owing by Newco to Interfocus
Group Limited (In Administrative Receivership) to complete the share
acquisition contemplated by the INL Share Purchase Deed by setting
off the amount of (pound)2,250,000 owing by Newco to Interfocus Group
Limited (In Administrative Receivership) under the INL Share Purchase
Deed against the amount of (pound)2,250,000 owing by Interfocus Group
Limited (In Administrative Receivership) to Maxxcom in partial
satisfaction of the IGL Intercompany Loan, and (b) each of Newco and
Maxxcom agree to enter into the Facility Letter/Promissory Note dated
15 August 2003 made by Newco in favour of Maxxcom in the amount of
(pound)2,250,000.
30. Maxxcom, Interfocus Group Limited (In Administrative Receivership)
and the Receivers
31. (as defined therein) enter into the Deed of Waiver dated 15 August
2003 whereby Maxxcom sets-off the amount of (pound)2,250,000, the
amount owing by Newco under the INL Share Purchase Deed, against the
amount of (pound)2,250,000, an amount owing by Interfocus Group
Limited (In Administrative Receivership) to Maxxcom in partial
satisfaction of the IGL Intercompany Loan.
APPENDIX B
DEFINITIONS
1. "Existing Maxxcom/Interfocus Security" means, collectively, the:
(a) Facility Letter/Promissory Note dated 26 July 2001 made by
Interfocus Group Limited in favour of Maxxcom;
(b) Security Agreement Deed dated 30 July 2001 made by
Interfocus Group Limited in favour of Maxxcom;
(c) (c) Mortgage of Shares dated 30 July 2001 made by Interfocus
Group Limited in favour of Maxxcom relating to shares of
Interfocus Direct Limited and Grange Advertising Limited
(now known as Interfocus Technology Group Limited) as
amended by the Supplemental Mortgage of Shares dated 25
February 2003 made by Interfocus Group Limited in favour of
Maxxcom relating to shares of Interfocus Technology Limited
(formerly known as Grange Advertising and Marketing
Communications Limited and known as at 28 February 2003 as
Interfocus Network Limited); and
(d) (d) Facility Letter/Promissory Note dated 31 May 2002 made
by Interfocus Network Limited in favour of Maxxcom in the
amount of (pound)500,000, together with the additional loan
provided by Maxxcom to Interfocus Network Limited in July
2003 in the amount of (pound)125,000.
2. "New Interfocus Opinions" means, collectively, the:
(a) Opinion of Xxxxxxx Xxxxxx regarding enforceability of the
English law New Interfocus Documentation, the English law
Newco Documentation and the related security registrations
effected in the United Kingdom;
(b) Opinion of Xxxxxxx Xxxxxx regarding the issued and
outstanding share capital of Newco, Interfocus Group
Limited, Interfocus Network Limited, Interfocus Technology
Group Limited, Interfocus Direct Limited and Interfocus
Technology Limited; and
(c) Opinion of Ontario counsel to the Restricted Parties
regarding enforceability of the Ontario law New Interfocus
Documentation, the Ontario law Newco Documentation and the
related security registrations effected in Ontario.
3. "New Interfocus Documentation" means, collectively, the following
documentation (together with all necessary certificates and all
related security registrations to be effected in the United Kingdom
and Ontario where such filing, registration or recording is necessary
or desirable to preserve, protect or perfect the validity,
enforceability or priority of the security created thereby):
(a) Amendment to the Credit Agreement by which, inter alia,
additional restrictions are placed on Interfocus Technology
Group Limited, Grange USA, Inc., Interfocus Direct Limited
and Interfocus Technology Limited;
(b) Amendment (replacement of schedules) to the existing
Assignment of Intercorporate Debt and Security made by
Maxxcom in favour of the Agent in relation to items (c) and
(d);
(c) Original Amended and Restated Facility Letter/Promissory
Note made by Interfocus Network Limited in favour of Maxxcom
in the amount of (pound)625,000;
(d) Original Security Agreement Deed made by Interfocus Network
Limited in favour of Maxxcom in support of obligations under
item (c);
(e) Adoption Agreement between Interfocus Network Limited and
the Agent;
(f) Security Agreement Deed made by Interfocus Network Limited
in favour of the Agent;
(g) Mortgage of Shares made by Interfocus Network Limited in
favour of the Agent relating to shares of Interfocus Direct
Limited and Interfocus Technology Group Limited, together
with original share certificates and stock transfers;
(h) Acknowledgment and Confirmation re Existing Security made by
Interfocus Network Limited (formerly known as Interfocus
Technology Limited and Grange Advertising and Marketing
Communications Limited), Interfocus Technology Group Limited
(formerly known as Grange Advertising Limited) and Grange
USA, Inc. in favour of the Agent;
(i) Adoption Agreement between Interfocus Technology Group
Limited and the Agent;
(j) Adoption Agreement between Grange USA, Inc. and the Agent;
(k) Adoption Agreement between Interfocus Direct Limited and
the Agent; and (1) Adoption Agreement between Interfocus
Technology Limited and the Agent.
4. "Newco" means Oval (1873) Limited, a company incorporated under the
laws of England.
5. "Newco Documentation" means, collectively, the following
documentation (together with all necessary certificates and all
related security registrations to be effected in the United Kingdom
and Ontario where such filing, registration or recording is necessary
or desirable to preserve, protect or perfect the validity,
enforceability or priority of the security created thereby):
(a) Securities Pledge Agreement made by Maxxcom in favour of the
Agent of all of the shares of Newco, together with original
share certificate and stock transfer;
(b) Amendment (replacement of schedules) to the existing
Assignment of Intercorporate Debt and Security made by
Maxxcom in favour of the Agent in relation to items (c) and
(d);
(c) Original Facility Letter/Promissory Note made by Newco in
favour of Maxxcom re advance made to Newco for its
acquisition of the shares of Interfocus Network Limited;
(d) Original Security Agreement Deed made by Newco in favour of
Maxxcom in support of obligations under item (c);
(e) Adoption Agreement between Newco and the Agent;
(f) Guarantee made by Newco in favour of the Agent of debts,
liabilities and obligations of Maxxcom to the Agent;
(g) Security Agreement Deed made by Newco in favour of the
Agent; and
(h) Mortgage of Shares made by Newco in favour of the Agent
relating to shares of Interfocus Network Limited, together
with original share certificates) and stock transfer(s).
6. "Outstanding Documents" means, collectively, the:
(a) Original Facility Letter/Promissory Note dated 31 May 2002
made by Interfocus Network Limited in favour of Maxxcom;
(b) Original Security Agreement dated 31 May 2002 between
Interfocus Network Limited and Maxxcom;
(c) Original Promissory Note dated 25 February 2003 in the
principal amount of (pound)900,000 made by Interfocus Group
Limited in favour of Interfocus Technology Group Limited
(formerly known as Grange Advertising Limited);
(d) Certified evidence of Registration of a Mortgage or Charge
pursuant to section 401(2) of the Companies Xxx 0000 made by
the Registrar of Companies for England and Wales re
registration on 17 March 2003 against Interfocus Group
Limited in favour of the Agent as first ranking assignee of
Maxxcom re Supplemental Mortgage of Shares made by
Interfocus Group Limited in favour of Maxxcom;
(e) Original share certificate re 3,750 ordinary shares of
Interfocus Technology Group Limited (formerly known as
Grange Advertising Limited);
(f) Original stock transfer re 3,750 ordinary shares of
Interfocus Technology Group Limited (formerly known as
Grange Advertising Limited), executed in blank;
(g) Original Promissory Note dated 25 February 2003 in the
principal amount of (pound)282,156 made by Interfocus
Technology Limited (formerly known as Grange Advertising and
Marketing Communications Limited and known at 28 February
2003 as Interfocus Network Limited) in favour of Interfocus
Network Limited (known at 28 February 2003 as Interfocus
Technology Limited);
(h) Opinion of Xxxxx & Xxxxx regarding enforceability of
security and related documentation delivered in connection
with the Interfocus-Grange reorganization in July 2001; and
(i) Opinion of Xxxxxxx Xxxxxx regarding enforceability of
documentation relating to the 2003 reorganization and the
related security registrations effected in the United
