Agreement for Consent - PNC Bank NA, CoActive Marketing Group Inc., U.S. Concepts Inc., Inmark Services Inc. and Optimum Group Inc.
AGREEMENT FOR CONSENT
THIS AGREEMENT FOR CONSENT (THE "AGREEMENT"), is made as of the 28 day
of January, 2000 (the "Closing Date") among PNC BANK, NATIONAL ASSOCIATION, a
national banking association, having an address at 2 Tower Center, East
Brunswick, New Jersey 08816 (the "Lender"); COACTIVE MARKETING GROUP, INC.,
(formerly known as Inmark Enterprises, Inc. ("Enterprises")), a Delaware
corporation ("CoActive"); U.S. CONCEPTS, INC., a Delaware Corporation ("USC");
INMARK SERVICES, INC., a Delaware corporation ("Services"), and OPTIMUM GROUP,
INC., an Ohio corporation (formerly, OG Acquisition Corp.) ("New OGI" and
together with Services and USC, the "Borrower"). CoActive, USC, Services, and
New OGI are collectively referred to herein as the "Inmark Group".
WITNESSETH:
WHEREAS, Lender is the holder of a certain Term Note dated March 31,
1998 made by Services and New OGI in the principal amount of $5,000,000 ("Term
Note"); and
WHEREAS, on December 29, 1998, the Term Note was amended and restated
to include USC as an obligor on the Term Note (the "Amended Term Note"); and
WHEREAS, Lender is the holder of a certain Revolving Note dated March
31, 1998 made by Services and New OGI in the principal amount of $5,000,000
("Revolving Note"); and
WHEREAS, on December 29, 1998, the Revolving Note was amended and
restated to include USC as an obligor on the Revolving Note; and
WHEREAS, the Revolving Note was again amended and restated on January,
1999 and on June 29, 1999 (the "Third Revolving Note"); and
WHEREAS, Lender, Enterprises, Services and New OGI entered into a Loan
Agreement dated as of March 31, 1998 ((i) as amended by a First Amendment to
Loan Documents dated as of December 29, 1998 to which USC became a party, (ii)
as amended by a Second Amendment to Loan Documents dated as of January 14, 1999,
(iii) as amended by Third Amendment to Loan Documents dated as of June 30, 1999,
and (iv) as amended by a Fourth Amendment to Loan Documents dated as of November
19, 1999) (the "Loan Agreement"); and
WHEREAS, the Third Revolving Note and the Amended Term Note are secured
as provided in the Loan Agreement and by such other documents as have been
executed to effectuate the terms of the Loan Agreement, which documents include,
but are not limited to a Security Agreement, Guaranty of Enterprises, and a
Pledge Agreement (all such documents collectively referred to as the "Loan
Documents"); and
WHEREAS, CoActive wishes to invest in Garcia Baldwin, Inc. (d/b/a
Market Vision) ("Market Vision") pursuant to a certain Subscription Agreement;
and
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WHEREAS, the Borrower has requested that the Lender consent to
CoActive's investment in Market Vision;
NOW THEREFORE, for and in consideration of the premises (which are
deemed herein contained) and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as follows:
1. RECITALS INCORPORATED.
The Recitals set forth above are true and correct and are hereby
incorporated into this Consent Agreement as if set forth at length herein.
2. PRINCIPAL AMOUNTS OUTSTANDING.
The Borrower acknowledges that:
(a) the outstanding principal balance due by the Borrower under the Amended
Term Note is, as of January 11, 2000 equal to the sum of $3,485,000,
together with unpaid interest; and
(b) the outstanding principal balance due by the Borrower under the Third
Revolving Note, is as of January 11, 2000 equal to the sum of
$5,000,000, together with unpaid interest.
The Borrower hereby represents, warrants and confirms that there are no set-off
rights, claims or causes of action of any nature whatsoever which the Borrower
has or may assert against the Lender under the Amended Term Note, Third
Revolving Note or the other Loan Documents.
3. NO WAIVER OR FORBEARANCE.
The execution of this Agreement and the consummation of the transaction
contemplated in this Agreement is not, and shall not be deemed to constitute, a
waiver, forbearance or cure of any default arising prior or subsequent to the
date of this Agreement. The Borrower represents that no events of default exist
which have not been disclosed to the Lender. The Borrower agrees that no delay
on the part of Lender in exercising any power or right shall operate as a waiver
or forbearance of any such power or right or preclude the further exercise of
any other power or right. The remedies herein are cumulative and not exclusive
of any remedies provided by law. Any notice to or demand given under the terms
of this Agreement shall not entitle the Borrower to further notice or demand
under any other Loan Document.
4. RELEASE OF LENDER.
As additional consideration for the consent as set forth herein,
Borrower hereby remises, releases, waives and forever discharges Lender and its
predecessors, successors and assigns, its parents, subsidiaries, officers,
directors, members, shareholders, agents, employees, representatives, attorneys
and any affiliated companies, their parents, subsidiaries, officers, directors,
shareholders, agents, employees, representatives and attorneys (collectively,
the "Released Parties") from any and all claims, demands, damages, actions or
causes of action whatsoever, known or unknown, from the beginning of time
through the date of this Agreement, related to the Loan Documents or the
administration of any of the above.
5. TERMS OF CONSENT.
The Borrower has requested and the Lender has agreed to consent to the
CoActive investment in Market Vision on the following terms:
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(a.) Anything in the Loan Documents notwithstanding, Borrower shall make
principal payments to the Lender in respect of the Amended Term Note in
three equal payments of not less than $166,666.67 (the "Accelerated
Payment"). Each Accelerated Payment shall be paid so as to be received
by Lender on or before January 31, 2000, February 29, 2000 and March
31, 2000, respectively. The Accelerated Payments replace the payment
due under paragraph 5 of the Fourth Amendment to Loan Documents,
executed on November 19, 1999. The Lender acknowledges receipt of the
first Accelerated Payment in the amount of $175,000 due on or before
January 31, 2000; and,
(b.) In order to finance the Market Vision investment, not less than
$1,000,000 of additional equity shall be invested in CoActive. At the
time of the investment of the additional equity, the Borrower shall
make a principal payment to the Lender in respect of the Amended Term
Note of $500,000 (the "Additional Payment"). If the Additional Payment
is not received on or before February 10, 2000, the Lender's consent to
CoActive's investment in Market Vision will be deemed withdrawn.
6. NO LEGAL RESTRAINT.
The Borrower represents that no (i) litigation, investigation or other
proceeding of or before any Governmental Authority is pending or, to the best of
knowledge of each member of the Inmark Group, threatened against any member of
the Inmark Group or any of its properties or revenues that could have a Material
Adverse Effect or (ii) injunction, writ, restraining order or any order of any
nature has been issued by any governmental Authority directing that the
transactions provided for in this Amendment not be consummated as therein
provided.
7. CONDITION SUBSEQUENT.
This Agreement shall become automatically void and of no force and
effect if on or prior to February 10, 2000 Lender shall not have received a
certificate from the Secretary or an Assistant Secretary of each member of the
Inmark Group, dated the Closing Date, certifying (as applicable) that (i)
attached to each such certificate is a true, complete and correct copy of the
resolutions of the Board of Directors of such member of the Inmark Group
authorizing among other things the execution, delivery and performance of this
Agreement and (ii) such resolutions have not been amended, modified, revoked or
rescinded since the dates on which they were adopted and (iii) the incumbency
and signature of each officer signing this Agreement and any other certificate
or other document to be delivered pursuant hereto (and another officer of such
member of the Inmark Group shall certify as to the incumbency of such Secretary
or Assistant Secretary).
8. CONTINUED VALIDITY OF ORIGINAL LOAN DOCUMENTATION.
Except as otherwise provided herein, the Loan Documents and all other
documents executed in connection therewith, shall continue unchanged in full
force and effect, in accordance with their respective terms, and the parties
hereto hereby expressly confirm and reaffirm all of their respective
liabilities, obligations, representations, warranties, duties and
responsibilities under and pursuant to said Loan Documents, including, but not
limited to, section 5.1 of the Loan Agreement.
9. CONSENT AGREEMENT CONTROLS.
In the event of a conflict between the terms and conditions of this
Agreement and the terms and conditions of the Loan Documents, the terms and
conditions of this Agreement shall control.
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10. INDEMNIFICATION.
(a) The Borrower hereby indemnifies and agrees to protect, defend and
hold harmless the Lender, any entity which "controls" the Lender within the
meaning of Section 15 of the Securities Act of 1933, as amended, or is under
common control with the Lender, and any member, officer, director, official,
agent, employee or attorney of the Lender, and their respective heirs,
administrators, executors, successors and assigns (collectively, the
"Indemnified Parties"), from and against any and all losses, damages, expenses
or liabilities of any kind or nature and from any suits, claims or demands,
including reasonable attorneys' fees incurred defending such claim, suffered by
any of them and caused by, relating to, arising out of, resulting from, or in
any way connected with the Loan Documents, this Agreement or the transactions
contemplated therein or herein including, without limitation: (i) any untrue
statement of a material fact contained in information submitted to Lender by the
Borrower or the omission of any material fact necessary to be stated therein in
order to make such statement not misleading or incomplete; and (ii) the failure
of the Borrower to perform any obligations herein required to be performed by
the Borrower, except that the Borrower shall not be required to indemnify the
Lender for their gross negligence or willful misconduct. In case any action
shall be brought against Lender or any other Indemnified Party in respect to
which indemnity may be sought against the Borrower, Lender shall promptly notify
the Borrower and the Borrower shall assume the defense thereof, and the payment
of all costs and expenses. Lender may select and employ counsel, provided that
the Borrower shall pay all of such counsel's fees, expenses and disbursements
and the Borrower shall indemnify Lender for any loss associated with or
resulting from such representation. The failure of Lender to so notify the
Borrower shall not relieve the Borrower of any liability they may have under the
foregoing indemnification provisions or from any liability which they may
otherwise have to Lender or any of the other Indemnified Parties, except to the
extent such failure to notify results in unreasonable prejudice to the Borrower.
Lender shall not be liable for any settlement of any such action effected
without their written consent, but if settled with the Borrower's consent, or if
there be a final judgment for the claimant in any such action, the Borrower
agrees to indemnify and save harmless Lender from and against any loss or
liability by reason of such settlement or judgment.
(b) The provisions of this Section shall survive the term of this
Agreement and the repayment or other satisfaction of the Amended Term Note and
Third Revolving Note.
11. PAYMENT OF LENDER'S EXPENSES AND LEGAL FEES.
The Borrower shall pay for all reasonable costs and expenses, including
attorneys fees, incurred by Lender in connection with the negotiation,
preparation and execution of this Agreement.
12. NO NOVATION.
It is the intention of the parties hereto that this Agreement shall not
constitute a novation and shall in no way adversely affect or impair the lien
priority of any of the Loan Documents.
13. SURVIVAL PROVISIONS.
The covenants, representations and obligations contained in this
Agreement shall survive the execution of all transactions contemplated by this
Agreement, and this Agreement shall bind
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and benefit the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and assigns.
14. ENTIRE AGREEMENT.
(a) This Agreement and the Loan Documents contain all of the covenants,
representations, warranties and agreements between the parties with respect to
the subject matters contained herein, and supercedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. The parties to this Agreement acknowledge that all the
terms of this Agreement were negotiated at arm's length and after adequate and
independent investigation on their respective parts and that this Agreement and
all documents executed in connection therewith were prepared and executed
without duress, undue influence or coercion of any kind exerted by any party
upon the other.
(b) Each party acknowledges and confirms that it has not relied upon Lender
or any officer, director or employee of the Lender, or upon the advice of any
but its own accountants or counsel, concerning any aspect of the transactions
contemplated by this Agreement including, without limitation, the tax
implications thereof and the representations herein made.
15. FURTHER ASSURANCES.
The parties hereto agree to execute all such further instruments and
take all such further action that may be reasonably required by any party to
fully effectuate the terms and provisions of this Agreement and the transaction
contemplated herein.
16. NOTICE TO THE LENDER.
Any notices or other communications required to be given to the Lender
under the Loan Documents shall be sent in the manner contemplated under the Loan
Documents, addressed as follows:
PNC Bank, National Association
2 Tower Center
East Brunswick, New Jersey 08816
Attention: David Jensen
Vice President
Facsimile: 732-220-3499
With a copy to:
McCarter & English, LLP
Four Gateway Center
100 Mulberry Street
Newark, New Jersey 07102
Attention: Lisa Bonsall, Esq.
Facsimile: 973-624-7070
17. PARTICIPATIONS.
Lender expressly retains and reserves its rights to sell and assign its
interests under the Loan Documents and this Agreement and fully disclose its
files in connection with the Loan
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Documents, and/or any collateral pledged in connection therewith (the
"Collateral"), to potential purchasers of the Lender's interests under the Loan
Documents.
18. NO MODIFICATION OF AGREEMENT EXCEPT IN WRITING.
The within Agreement encompasses all the terms between the parties,
notwithstanding any verbal communications between the parties. No further terms
shall be deemed effective, unless in writing, executed by both parties. The
parties hereto acknowledge the provisions of N.J.S.A. 25:1-5, which precludes
enforcement, inter alia, of any oral promises relating to extensions of credit
and agree that its provisions are fully applicable to this Agreement.
19. WAIVER OF JURY TRIAL.
THE BORROWER AND LENDER HEREBY WAIVE ANY RIGHT TO REQUEST A TRIAL BY
JURY IN ANY LITIGATION WITH RESPECT TO ANY ASPECT OF THIS AGREEMENT OR THE LOAN
DOCUMENTS. THE BORROWER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT
WITH INDEPENDENT COUNSEL WITH RESPECT TO THIS WAIVER.
20. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the
laws of New York without regard to principles of conflicts of law.
21. EVENT OF DEFAULT.
Failure to timely make any payment contemplated in this Agreement, or
the breach of any representation or warranty contained herein shall constitute
an event of default ("Event of Default") under the Loan Documents.
The Borrower's breach of any other representation or warranty contained
in, or its failure to comply with any term or covenant of any of the Loan
Documents, and/or any other document executed in connection with the foregoing,
shall constitute an Event of Default.
Upon the occurrence of an Event of Default Lender shall be free to
pursue all of its legal and equitable rights and remedies including, but not
limited to, all of its remedies under the Loan Documents, this Agreement and any
documents executed in connection herewith.
22. CONSTRUCTION.
The parties hereto agree that the terms and language of this Agreement
were the result of negotiations between the parties and, as a result, there
shall be no presumption that any ambiguities in this Agreement shall be resolved
against either party. Any controversy over the construction of this Agreement
shall be decided neutrally, in light of its conciliatory purposes, and without
regard to events of authorship or negotiation. All terms and words used in this
Agreement, regardless of the number and gender in which used, shall be deemed to
include any other number or gender as the context or use thereof may require. If
more than one person or entity is named as the Borrower, each such person or
entity shall be jointly and severally liable for the representations,
warranties, covenants and obligations of the Loan Documents and this Agreement.
The captions contained in this Agreement are used for convenience of reference
only and in no way define limit or describe the scope or intent of this
Agreement or any particular paragraph or section hereof or the proper
construction hereof.
23. ADMISSIBILITY.
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The terms of this Agreement, when executed, shall be fully admissible
in any court of law. The parties hereto waive any objection that may be
interposed under any state or federal rules of evidence as to the admissibility
of this document.
24. NO THIRD PARTY BENEFICIARIES.
It is not the intent of the parties who are signatories to this
Agreement to grant any rights whatsoever to parties who are not signatories to
this Forbearance Agreement and no provision of this Agreement should be
construed to grant any rights to any party who is not a signatory herein.
25. COUNTERPARTS.
This Amendment may be executed in several counterparts, each of which,
when executed and delivered, shall be deemed an original, and all of which
together shall constitute one agreement.
26. ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of Lender
the Borrower and their respective permitted heirs, successors and assigns. The
Borrower shall not assign this Agreement without the prior written consent of
Lender.
THE BORROWER DECLARES THAT EACH PARTY TO THIS AGREEMENT HAS RECEIVED, WITHOUT
CHARGE, A TRUE COPY OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COACTIVE MARKETING GROUP, INC.
(f/k/a Inmark Enterprises, Inc.)
Attest: /s/ Gloria Perilovaris By: /s/ Donald A. Bernard
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Name/Title Donald A. Bernard
Executive Vice President
U.S. CONCEPTS, INC.
(a Delaware corporation)
Attest: /s/ Gloria Perilovaris By: /s/ Donald A. Bernard
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Name/Title Donald A. Bernard
Executive Vice President
INMARK SERVICES, INC.
Attest: /s/ Gloria Perilovaris By: /s/ Donald A. Bernard
--------------------------- ----------------------------
Name/Title Donald A. Bernard
Executive Vice President
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OPTIMUM GROUP, INC.
Attest: /s/ Gloria Perilovaris By: /s/ Donald A. Bernard
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Name/Title Donald A. Bernard
Executive Vice President
PNC BANK, N.A.
Attest: /s/ Arura Unger By: /s/ David Jensen
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Name/Title David Jensen, Vice President
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