ACTIVE LINK COMMUNICATIONS, INC.
FORM 10-KSB
EXHIBIT 10 (p.5)
AGREEMENT
This Agreement is made as of June 20, 2003, among Spectrum Commercial
Services Company, a Minnesota corporation, Renaissance US Growth & Income Trust
PLC, a public limited company registered in England and Wales, Renaissance
Capital Growth & Income Fund III, Inc., a Texas corporation, Xxxx X. Xxxxxxxx
and Xxxxxx Xxxxxx (hereinafter collectively "DEBTORS") and Integrated Mobile
Solutions, LLC ("INVESTOR") who has loaned or will loan Active Link
Communications, Inc. and Mobility Concepts, Inc. (hereinafter collectively
"ACVE") a total of $300,000 (the "INVESTOR'S Loan").
WHEREAS, DEBTORS and ACVE have entered into certain Security Agreements;
and
WHEREAS, the Security Agreements provide that ACVE shall not incur or
permit to exist any indebtedness, secured or unsecured, for money borrowed
without DEBTORS' written consent.
NOW THEREFORE, DEBTORS and ACVE agree as follows:
1. DEBTORS consent to ACVE's borrowing of the $300,000 from INVESTOR, and
to ACVE's grant of the security interest to INVESTOR.
2. INVESTOR hereby agrees that any security interest which INVESTOR may
now hold or may at anytime hereafter acquire in the Collateral (defined below)
is, shall be and shall remain fully subordinate for all purposes to any security
interest now held by DEBTORS in any or all of the Collateral, except for the
security interest in the Stock. "Collateral" as used herein refers to all
property of ACVE whatsoever, including, without limitation: (a) all of ACVE's
inventory, whether now owned or hereafter acquired and wherever located, (b) all
of ACVE's equipment, whether now owned or hereafter acquired and wherever
located, (c) all of ACVE's chattel paper, purchase orders, purchase order
contracts, accounts and accounts receivable, whether now existing or hereafter
arising, and all other rights to payment of every type and description, whether
now existing or hereafter arising,; (d) all of ACVE's general intangibles,
deposit accounts, money, cash and the like, whether now owned or existing or
hereafter acquired or arising; (e) all investment property and (f) proceeds
(including insurance proceeds) of all of the above.
3. Except with respect to the Mobility Concepts, Inc. Stock, INVESTOR will
not exercise collection rights as to any Collateral, will not take possession
of, collect, sell or dispose of any Collateral, will not claim recoupment,
setoff, or any defense or counterclaim against any Collateral, and will not
exercise or enforce any other right or remedy available to the undersigned upon
default, without DEBTORS' prior written consent, for a period of 30 days from
the date that DEBTORS receive notice of an event of default that declared by the
INVESTOR.
4. Except with respect to the Mobility Concepts, Inc. Stock, DEBTORS may
exercise collection rights, may take possession of, and may sell, collect or
dispose of Collateral, and/or may exercise and enforce any other right or remedy
available with respect to Collateral, all without notice to or consent by
anyone, except that notice will be provided to INVESTOR within a reasonable time
after commencement of any material collection effort or as otherwise
specifically required by law. DEBTORS may apply the proceeds of Collateral to
any indebtedness secured by their security interest, in any order of
application, and shall remit any excess proceeds or any other sums to INVESTOR
without being
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obligated to assure that any such proceeds or sums are applied to the
satisfaction of INVESTOR's subordinated security interest in any Collateral,
except as specifically required by law.
5. Neither INVESTOR nor DEBTORS (i) makes any representation or warranty
concerning the Collateral or the validity, perfection or (except as to the
subordination effected hereby) priority of any security interest therein; or
(ii) shall have any duty to preserve, protect, care for, insure, take possession
of, collect, dispose of or otherwise realize upon any Collateral except as
otherwise described in this Agreement.
6. Except for its priority security interest in the Mobility Concepts,
Inc. Stock, INVESTOR waives its priority available to INVESTOR by law with
respect to any pre-existing security interest in the Collateral with respect to
DEBTORS only, but the priority or parity of the rights and claims of INVESTOR
and DEBTORS as general creditors of ACVE (rather than as secured parties) shall
not be affected or impaired by this Agreement.
8. The terms of this Agreement which relate to the relative priorities of
the security interests of INVESTOR and DEBTORS are solely for the benefit of
such parties and their respective successors and assigns, and no other person
shall have any right, benefit or priority under or because of such provision.
9. This Agreement is made under and shall be interpreted under the laws of
the State of Illinois, without reference to conflict of laws principles.
Jurisdiction and venue shall lie in federal and state courts in Chicago,
Illinois. It cannot be waived, changed or ended, except by a writing signed by
the party to be bound thereby. This Agreement shall be binding upon INVESTOR and
the successors and assigns of INVESTOR and shall inure solely to the benefit of
DEBTORS and their successors and assigns. INVESTOR and DEBTORS each agree that
any successor or assign of their respective interest in their respective
collateral will be given written notice of this agreement, prior to the time of
purchase, transfer or assignment, and that any such successor or assignee will
in all respects be subject to and bound by this Agreement. Should DEBTORS find
it necessary to retain counsel to enforce their rights hereunder, DEBTORS shall
recover their attorneys' fees and expenses. A facsimile/telecopied signature
hereon shall be as effective as an original.
10. INVESTOR and DEBTORS hereby agree that upon request by the other, they
will provide information regarding their financial transactions with ACVE, as
well as ACVE financial performance information which has been provided by ACVE.
ACVE hereby acknowledges and agrees to the terms of this Agreement including,
but not limited to the release of all information regarding its operations,
financial performance, payment of taxes and any and all other information
provided by DEBTORS or INVESTOR to the other and hereby releases and holds
DEBTORS and INVESTOR harmless from any claims, actions, damages, or liabilities
arising from the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SPECTRUM COMMERCIAL SERVICES COMPANY
By:
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Its
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ACTIVE LINK COMMUNICATIONS, INC.
By:
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Its
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RENAISSANCE CAPITAL GROWTH & INCOME FUND III, INC.
By: Renaissance Capital Group, Inc.,
Investment Adviser
By:________________________
Xxxxxxx Xxxxxxxxx, President and
Chief Executive Officer
RENAISSANCE US GROWTH & INCOME TRUST PLC
By: ___________________________
Xxxxxxx Xxxxxxxxx, Director
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XXXX X. XXXXXXXX
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XXXXXX XXXXXX
MOBILITY CONCEPTS, INC.
By: ___________________________
INTEGRATED MOBILE SOLUTIONS, LLC
By:
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Xxxxx Xxxxxx
Manager
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