Exhibit 10.2
ASSUMPTION AND AMENDMENT AGREEMENT
THIS ASSUMPTION AND AMENDMENT AGREEMENT ("Agreement") is made and entered
as of the 31st day of July, 2001, by and between Commerce Capital, L.P., a
Tennessee limited partnership ("Lender") and Monsterdaata, Inc., a Delaware
corporation ("Monsterdaata"), as successor by merger to XxxxxxxxxxxxXxxx.xxx,
LLC, a Delaware limited liability company ("NFC").
WHEREAS, pursuant to a Loan Agreement dated as of June 13, 2000, as
amended by Amendment No. 1 to Loan Agreement dated as of November 30, 2000
(collectively, the "Loan Agreement"), between Lender and NFC, the Lender made
loans to NFC of $800,000 initially and $380,000 subsequently, which loans were
evidenced by secured promissory notes in such amounts dated June 13, 2000 and
November 30, 2000, respectively (such promissory notes collectively, the
"Original Notes"), and secured by the Loan Documents, as defined in the Loan
Agreement (capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings set forth in the Loan Agreement); and
WHEREAS, NFC and Monsterdaata, have entered into that certain Merger
Agreement dated as of July 20, 2001, pursuant to which NFC will be merged with
and into Monsterdaata (the "Merger"), as a result of which Monsterdaata will
succeed to all rights and obligations of NFC under the Loan Documents; and
WHEREAS, it is a condition precedent to Monsterdaata's obligations to
consummate the Merger that Lender agree to amend certain of the Loan Documents;
and
WHEREAS, contemporaneously with execution of this Agreement, Monsterdaata
has executed and delivered to Lender a Consolidated and Restated Secured
Promissory Note, dated the date hereof, in the principal amount of $1,180,000
(the "Consolidated Note") reflecting certain amendments to which the parties
have agreed; and
WHEREAS, the parties desire to memorialize in writing the other
modifications and amendments to which they have agreed.
NOW, THEREFORE, in consideration of the premises, in order to induce
Monsterdaata to consummate the Merger, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lender and Monsterdaata hereby agree as follows:
1. Assumption and Global Amendments. Monsterdaata hereby confirms its
assumption, by operation of law, of all of the obligations of NFC under each of
the Loan Documents, except as amended by this Agreement. Pursuant to Section 7.4
of the Loan Agreement, Lender hereby consents to the assignment by NFC of its
rights and the delegation of its duties under each of the Loan Documents, as
amended hereby, to Monsterdaata. Each of the Loan Documents is hereby amended,
by deleting in each place it appears "XxxxxxxxxxxxXxxx.xxx, LLC, a Delaware
limited liability company,"
and substituting in its place "Monsterdaata, Inc., a Delaware corporation." All
references in any of the Loan Documents to "Borrower" shall, from and after the
date hereof, be deemed references to Monsterdaata. Each reference in any of the
Loan Documents to the Note or Notes shall be deemed to be a reference to the
Consolidated Note, and each reference to the "Obligations," the "Loan," the
"Indebtedness," or words of like import shall be deemed to include the
indebtedness under the Consolidated Note. The provisions for notices to the
Borrower in each of the Loan Documents are amended, to provide for notices to
Borrower at 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xx. Xxxxxx X. Xxxxxxxx, Xx., President and Chief Executive Officer.
2. Amendment of Loan Agreement. The Loan Agreement is hereby amended as
follows:
a. The headings and text of Sections 3.10, 3.12, 3.14, 3.16, 3.18,
3.20, 3.21, and 5.1(i) are hereby deleted and of no further force and
effect, and there is hereby substituted in their place, as to each of such
Sections, the term "[Reserved]."
b. Section 3.15 is hereby amended, by inserting at the end thereof
the following: "Notwithstanding the foregoing, in the event that Borrower
notifies Lender that Borrower desires to obtain debt financing (whether
through the issuance of securities or otherwise), a condition of which is
the granting of security interests or other liens on Borrower's assets
which are senior in right of priority to the security interests and liens
on the Borrower's assets held by Lender, Lender shall consent to such
transaction provided that Borrower provides to Lender other security
having a value and priority of perfection such that, in Lender's
reasonable judgment, the security for repayment of the Loan will not be
materially impaired."
c. Section 7.4 is hereby amended, by inserting at the end of the
last sentence thereof the phrase "other than in connection with a merger
involving Borrower (whether or not Borrower is the surviving corporation
of any such merger), the acquisition of all of the outstanding capital
stock of Borrower by a third party, the sale of substantially all assets
of Borrower, or similar reorganization involving Borrower."
3. Amendment of Security Agreement. The Security Agreement dated as of
June 13, 2000 between Lender and NFC (the "Security Agreement") is hereby
amended as follows:
a. Section 4(e) of the Security Agreement is hereby amended, by
adding at the end of the first sentence thereof the phrase "other than in
connection with a merger involving Borrower (whether or not Borrower is
the surviving corporation of any such merger), the acquisition of all of
the outstanding capital stock of Borrower by a third party, the sale of
substantially all assets of Borrower, or similar reorganization involving
Borrower."
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b. Section 4 of the Security Agreement is further amended, by adding
at the end thereof the following new subsection (i):
"(i) The Collateral as described in Section 1 above shall
include all "supporting obligations" (as such term is defined in Revised
Article 9 of the Uniform Commercial Code as in effect in any jurisdiction
whose laws may be applicable ("Revised Article 9"), as well as the
following categories of assets as defined in Revised Article 9: goods
(including inventory, equipment and any accessions thereto), instruments
(including promissory notes), documents, accounts, chattel paper (whether
tangible or electronic, deposit accounts, letter-of-credit rights (whether
or not evidenced in writing), commercial tort claims, securities and all
other investment property, general intangibles (including payment
intangibles and software, and any and all proceeds thereof, whether now
owned or hereafter acquired. If required, Lender may at any time and from
time to time file financing statements, continuation statements and
amendments thereto that describe the Collateral, containing any
information required by Part 5 of Revised Article 9 for the sufficiency or
amendment, including the type of Borrower's organization and any
organization identification number issued to Borrower. Borrower agrees to
furnish any such information to Lender promptly on request. Any such
financing statements, continuation statements or amendments may be signed
by Lender on behalf of Borrower, and may be filed at any time in any
jurisdiction whether or not Revised Article 9 is in effect in that
jurisdiction.
4. Amendment of Intellectual Property Security Agreement. Section 4(c)
of the Intellectual Property Security Agreement dated as of June 13, 2000
between Lender and NFC (the "Intellectual Property Security Agreement") is
hereby amended, by adding at the end thereof the phrase "other than in
connection with a merger involving Borrower (whether or not Borrower is the
surviving corporation of any such merger), the acquisition of all of the
outstanding capital stock of Borrower by a third party, the sale of
substantially all assets of Borrower, or similar reorganization involving
Borrower."
5. Cancellation of Original Notes. Simultaneously with the execution and
delivery by Monsterdaata to the Lender of the Consolidated Note, the Lender
shall deliver to Monsterdaata the Original Notes, as manually executed by NFC,
marked "Cancelled", at which time such Original Notes shall be deemed of no
further force and effect.
6. Waiver. Lender hereby waives all defaults and events of default that
may have occurred prior to the date hereof, under any of the Loan Documents. In
addition, Lender hereby waives compliance with Section 4(a) of the Security
Agreement, for the limited purpose of permitting Monsterdaata to move any or all
of the Collateral (as defined therein), and any records respecting any of the
Collateral, to the State of New York, provided, however, that Monsterdaata
provides Lender with prior written notice of any such proposed move, and
executes and delivers to Lender for filing at Monsterdaata's
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expense any amendments on Form UCC-3 (or other appropriate form) that may be
necessary or appropriate in order to continue the perfection and priority of
Lender's security interests in the Collateral. The foregoing waivers shall not
be construed as a waiver of any default or event of default that may occur after
the date hereof, as a consent to any action or failure to act in conformity with
the Loan Documents, or any other matter.
7. Further Assurances. Monsterdaata agrees that, from time to time as
requested by Lender, Monsterdaata will execute such other documents and perform
such other actions as may be reasonably necessary or appropriate to evidence
Monsterdaata's assumption of the obligations of NFC and otherwise to carry out
the intent of this Agreement.
8. Entire Agreement. This Agreement, together with the Consolidated
Note, represents the entire agreement between the parties concerning the subject
matter hereof, and all oral discussions and prior agreements are merged herein.
9. Representation and Warranty of Monsterdaata. Monsterdaata represents
and warrants to Lender that this Agreement has been duly authorized by all
necessary corporate action on the part of Monsterdaata and is the legal, valid
and binding obligation of Monsterdaata, enforceable in accordance with its
terms, subject to limitations imposed by bankruptcy, insolvency, moratorium or
other similar laws affecting the rights of creditors generally or the
application of general equitable principles.
10. Waiver of NFC Representations and Warranties. Lender acknowledges
that the representations and warranties of NFC contained in the Loan Agreement,
the Security Agreement, and the Intellectual Property Security Agreement,
including the schedules and exhibits thereto, were given as of June 13, 2000 and
November 30, 2000, that Lender has not requested Monsterdaata to confirm or
update any of such representations and warranties, and that Lender has not
relied on the continuing accuracy of such representations and warranties in
connection with the execution of this Agreement and closing of the transactions
contemplated hereby. Accordingly, Lender hereby irrevocably waives any right or
power it otherwise may have had (or may in the future have) to declare a
default, to accelerate and demand immediate payment of principal under the Notes
or the Consolidated Note, or to exercise any other remedies provided in such
documents, based upon the inaccuracy of any representation or warranty contained
in Article 2 of the Loan Agreement, Article 3 of the Security Agreement, or
Article 3 of the Intellectual Property Security Agreement.
11. Effectiveness. This Agreement shall become effective upon, and
simultaneously with, the closing of the Merger.
12. Governing Law. This Agreement shall be construed and enforced under
the laws of the State of Tennessee applicable to contracts to be wholly
performed in such State.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
in multiple counterparts, as of the day and year first above written.
COMMERCE CAPITAL, L.P.
By: Commerce Equity Capital Corporation,
General Partner
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Vice President
MONSTERDAATA, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title: CEO and President
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