EXHIBIT 4.4
COLLATERAL PLEDGE AGREEMENT
Date: October 22, 1998
DEBTOR: Telident, Inc.
00 Xxxxxx Xx. XX
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Telecopier No. (000) 000-0000
SECURED PARTY: Norwest Credit, Inc.
Xxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx and Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
1. Security Interest and Collateral. To secure the payment and
performance of each and every debt, liability and obligation of every type and
description which the Debtor may now or at any time hereafter owe to the Secured
Party (whether such debt, liability or obligation now exists or is hereafter
created or incurred, and whether it is or may be direct or indirect, due or to
become due, absolute or contingent, primary or secondary, liquidated or
unliquidated, or joint, several or joint and several; all such debts,
liabilities and obligations being herein collectively referred to as the
"Obligations"), the Debtor hereby grants the Secured Party a security interest
(herein called the "Security Interest") in:
any funds or Investment Property, as such term is defined in
the Uniform Commercial Code, in account number 00000000 maintained with
Norwest Investment Services, Inc., and all property and assets now or
hereafter carried in such account, together with all rights in
connection with such property (herein called the "Collateral").
2. Representations, Warranties and Covenants. The Debtor
represents, warrants and covenants that:
(a) The Debtor will duly endorse, in blank, each and every
instrument constituting Collateral by signing on said instrument or by
signing a separate document of assignment or transfer, if required by
the Secured Party.
(b) The Debtor is the owner of the Collateral free and clear
of all liens, encumbrances, security interests and restrictions, except
the Security Interest and any restrictive legend appearing on any
instrument constituting Collateral.
(c) The Debtor will keep the Collateral free and clear of all
liens, encumbrances and security interests, except the Security
Interest.
(d) The Debtor will pay, when due, all taxes and other
governmental charges levied or assessed upon or against any Collateral.
(e) At any time, upon request by the Secured Party, the Debtor
will deliver to the Secured Party all notices, financial statements,
reports or other communications received by the Debtor as an owner or
holder of the Collateral.
(f) The Debtor will upon receipt deliver to the Secured Party
in pledge as additional Collateral all securities distributed on
account of the Collateral such as stock dividends and securities
resulting from stock splits, reorganizations and recapitalizations.
3. Rights of the Secured Party. The Debtor agrees that the
Secured Party may at any time after the occurrence of an Event of Default and
without notice or demand of any kind, (i) notify the obligor on or issuer of any
Collateral to make payment to the Secured Party of any amounts due or
distributable thereon; (ii) in the Debtor's name or the Secured Party's name
enforce collection of any Collateral by suit or otherwise, or surrender, release
or exchange all or any part of it, or compromise, extend or renew for any period
any obligation evidenced by the Collateral; (iii) receive all proceeds of the
Collateral; and (iv) hold any increase or profits received from the Collateral
as additional security for the Obligations, except that any money received from
the Collateral shall, at the Secured Party's option, be applied in reduction of
the Obligations, in such order of application as the Secured Party may
determine, or be remitted to the Debtor.
4. Events of Default. Each of the following occurrences shall
constitute an event of default under this Agreement (herein called "Event of
Default"): (i) the Debtor shall fail to pay any or all of the Obligations when
due or (if payable on demand) on demand, or shall fail to observe or perform any
covenant or agreement herein binding on it; (ii) any representation or warranty
by the Debtor set forth in this Agreement or made to the Secured Party in any
financial statements or reports submitted to the Secured Party by or on behalf
of the Debtor shall prove materially false or misleading; (iii) an Event of
Default, as defined in any credit agreement or other instrument or agreement
evidencing or governing any or all of the Obligations, shall occur.
5. Remedies upon Event of Default. Upon the occurrence of an
Event of Default and at any time thereafter, the Secured Party may exercise any
one or more of the following rights or remedies: (i) declare all unmatured
Obligations to be immediately due and payable, and the same shall thereupon be
immediately due and payable, without presentment or other notice or demand; (ii)
exercise all voting and other rights as a holder of the Collateral; (iii)
exercise and enforce any or all rights and remedies available upon default to a
secured party under the Uniform Commercial Code as in effect from time to time
in the state of Minnesota, including the right to offer and sell the Collateral
privately to purchasers who will agree to take the Collateral for investment and
not with a view to distribution and who will agree to the imposition of
restrictive legends on the certificates representing the Collateral, and the
right to arrange for a sale which would otherwise qualify as exempt from
-2-
registration under the Securities Act of 1933; and if notice to the Debtor of
any intended disposition of the Collateral or any other intended action is
required by law in a particular instance, such notice shall be deemed
commercially reasonable if given at least 10 calendar days prior to the date of
intended disposition or other action; (iv) exercise or enforce any or all other
rights or remedies available to the Secured Party by law or agreement against
the Collateral, against the Debtor or against any other person or property.
6. Miscellaneous. Any disposition of the Collateral in the
manner provided in Section 5 shall be deemed commercially reasonable. This
Agreement can be waived, modified, amended, terminated or discharged, and the
Security Interest can be released, only explicitly in a writing signed by the
Secured Party. A waiver signed by the Secured Party shall be effective only in
the specific instance and for the specific purpose given. Mere delay or failure
to act shall not preclude the exercise or enforcement of any of the Secured
Party's rights or remedies. All rights and remedies of the Secured Party shall
be cumulative and may be exercised singularly or concurrently, at the Secured
Party's option, and the exercise or enforcement of any one such right or remedy
shall neither be a condition to nor bar the exercise or enforcement of any
other. All notices to be given to the Debtor shall be deemed sufficiently given
if delivered or mailed by registered or certified mail, postage prepaid, or by
telecopier to the Debtor at its address or telecopier number, as the case may
be, set forth above or at the most recent address or telecopier number shown on
the Secured Party's records. The Secured Party's duty of care with respect to
Collateral in its possession (as imposed by law) shall be deemed fulfilled if
the Secured Party exercises reasonable care in physically safekeeping such
Collateral or, in the case of Collateral in the custody or possession of a
bailee or other third person, exercise reasonable care in the selection of the
bailee or other third person, and the Secured Party need not otherwise preserve,
protect, insure or care for any Collateral. The Secured Party shall not be
obligated to preserve any rights the Debtor may have against prior parties, to
exercise at all or in any particular manner any voting rights which may be
available with respect to any Collateral, to realize on the Collateral at all or
in any particular manner or order, or to apply any cash proceeds of Collateral
in any particular order of application. The Debtor will reimburse the Secured
Party for all expenses (including reasonable attorneys' fees and legal expenses)
incurred by the Secured Party in the protection, defense or enforcement of the
Security Interest, including expenses incurred in any litigation or bankruptcy
or insolvency proceedings. This Agreement shall be binding upon and inure to the
benefit of the Debtor and the Secured Party and its respective heirs,
representatives, successors and assigns and shall take effect when signed by the
Debtor and delivered to the Secured Party, and the Debtor waives notice of the
Secured Party's acceptance hereof. If any provision or application of this
Agreement is held unlawful or unenforceable in any respect, such illegality or
unenforceability shall not affect other provisions or applications which can be
given effect, and this Agreement shall be construed as if the unlawful or
unenforceable provision or application had never been contained herein or
prescribed hereby. All representations and warranties contained in this
Agreement shall survive the execution, delivery and performance of this
Agreement and the creation and payment of the Obligations. If this Agreement is
signed by more than one person as the Debtor, the term "Debtor" shall refer to
each of them separately and to both or all of them
-3-
jointly; all such persons shall be bound both severally and jointly with the
other(s); and the Obligations shall include all debts, liabilities and
obligations owed to the Secured Party by any Debtor solely or by both or several
or all Debtors jointly or jointly and severally, and all property described in
Section 1 shall be included as part Collateral, whether it is owned jointly by
both or all Debtors or is owned in whole or in part by one (or more) of them.
This Agreement shall be governed by the internal laws (other than conflict laws)
of the state of Minnesota and, unless the context otherwise requires, all terms
used herein which are defined in Articles 1 and 9 of the Uniform Commercial
Code, as in effect in Minnesota, shall have the meanings therein stated. Each
party consents to the personal jurisdiction of the state and federal courts
located in the State of Minnesota in connection with any controversy related to
this Agreement, waives any argument that venue in any such forum is not
convenient, and agrees that any litigation initiated by any of them in
connection with this Agreement shall be venued in either the District Court of
Hennepin County, Minnesota, or the United States District Court, District of
Minnesota, Fourth Division. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED ON OR PERTAINING TO THIS AGREEMENT.
TELIDENT, INC.
By /s/ W. Xxxxxx XxXxxxxxxx
------------------------
W. Xxxxxx XxXxxxxxxx
Its President and Chief Executive Officer
-4-
