EXHIBIT 10.27.3
THIRD LOAN EXTENSION AGREEMENT
AND GUARANTORS' CONSENT AND AGREEMENT
Dated: 3-11, 2004
This THIRD LOAN EXTENSION AGREEMENT AND GUARANTORS' CONSENT AND
AGREEMENT (herein the "LOAN EXTENSION AGREEMENT") is made and entered into by
and between TELE DIGITAL DEVELOPMENT, INC. (the "BORROWER"), DATA SALES CO.,
INC. (the "LENDER"), XXXXXXX X. XXXXXXX ("XXXXXXX"), XXXXXXX X. XXXXXXX
("XXXXXXX"), XXXXX XXXXX ("XXXXX"), and XOX CORPORATION ("XOX").
WHEREAS, the Lender has extended a credit facility to Borrower
evidenced by a Promissory Note (the "Note") in the amount of $1,308,000.00 dated
May 3, 2002 (the "Credit Facility"); and
WHEREAS, the Credit Facility is further evidenced by a Security
Agreement executed by Borrower, and Guarantys executed by Perkins, Barnaby,
Xxxxx, and XOX, and a UCC-1 Financing Statement filed as Document No.
20223962292 in the Office of the Minnesota Secretary of State, and other related
documents; and
WHEREAS, at the request of Borrower, a Loan Extension Agreement and
Guarantors' Consent was entered into by the parties hereto which extended the
original maturity date of the Credit Facility from August 1, 2002, to December
31, 2002 (the "FIRST EXTENSION"); and
WHEREAS, at the additional request of Borrower, a subsequent Loan
Extension Agreement and Guarantors' Consent dated December 31, 2002, was entered
into by the parties hereto extending the maturity date of the Credit Facility
from December 31, 2002, to January 31, 2003 (the "SECOND EXTENSION"); and
WHEREAS, the Borrower has requested this THIRD EXTENSION of the Credit
Facility; and
WHEREAS, the Lender is willing to again modify the Credit Facility as
requested by Borrower, but only on the terms and conditions set forth in this
Loan Extension Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and for other good and valuable consideration, the parties
agree as follows:
1. The terms of the documents and agreements comprising the
Credit Facility, the FIRST Extension, and the SECOND Extension, except
to the extent modified herein, are incorporated herein by reference.
2. The Credit Facility is hereby modified to the effect that
the maturity date of the Note is extended to JUNE 1, 2004, on which
date all principal, plus accrued interest, charges, and all other
amounts owed thereunder shall be due and payable in full
Page 1 of 4
EXHIBIT 10.27.3
3. This Loan Extension Agreement is effective only upon
receipt by Lender of the following:
a. The consent and agreement of Perkins, Barnaby, Xxxxx,
and XOX, and additional collateral pledged by Xxxxxxx
in form and substance satisfactory to the Lender,
which pledge shall be effective contemporaneously
with the date hereof.;
b. A fully-executed original of this Third Loan
Extension Agreement and Guarantor's Consent and
Agreement.
4. The amount due under the Note, on which interest shall
accrue on and after February 27, 2004, is $1,152,820.56. In addition,
an extension fee is due and owing of $51,479.03.
5. Except as expressly set forth herein, all of the terms and
provisions, including default provisions, covenants, and warranties, of
the documents evidencing the Credit Facility remain unmodified and in
full force and effect.
6. Borrower agrees to pay Lender's attorneys' fees and
out-of-pocket costs related to the Loan Extension Agreement, and to
indemnify, reimburse and to save and hold the Lender harmless against
any and all claims, suits, actions, debts, damages, costs, charges and
expenses, including without limitation, court costs and attorneys fees
and against all liabilities and losses of any nature or kind,
whatsoever, that the Lender shall or may hereafter sustain, as a result
of the Lender's execution hereof.
7. This Agreement may be executed in counterpart.
IN WITNESS HEREOF, Borrower, Lender, and Guarantors have executed this
Loan Extension Agreement on the date above written.
BORROWER:
TELE DIGITAL DEVELOPMENT, INC.
(a Minnesota corporation)
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
XXXXXXX X. XXXXXXX
Its: President
Page 2 of 4
EXHIBIT 10.27.3
LENDER:
DATA SALES CO., INC.
By: /s/ X.X. Xxxxxxxx
--------------------------
X.X. XXXXXXXX
Its: President
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 12 day of
March , 2004, by XXXXXXX X. XXXXXXX, the President of TELE DIGITAL DEVELOPMENT,
INC., a Minnesota corporation, on behalf of the corporation.
/s/ Xxxxxxxxx X. Xxxx
------------------------------
(Notarial Seal) Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 3 day of March
, 2004, by /s/ X.X. Xxxxxxxx , the President of DATA SALES CO., Inc., a
Minnesota corporation, on behalf of the corporation.
/s/ Xxxx X. Xxxxxxxxxx
------------------------------
(Notarial Seal) Notary Public
Page 3 of 4
EXHIBIT 10.27.3
GUARANTORS' CONSENT AND AGREEMENT
The undersigned, all Guarantors under written Guaranties in favor of
Lender guarantying repayment by Borrower of its obligations under the Credit
Facilities (the "GUARANTYS") hereby consent to the Borrower's execution of this
Third Loan Extension Agreement and Guarantors' Consent and Agreement (the "THIRD
LOAN EXTENSION AGREEMENT") and acknowledge, agree, and represent that their
obligations under the Guarantys will remain in full force and effect upon and
subsequent to the Borrower's execution of the Third Loan Extension Agreement.
The undersigned Guarantors (except XOX) agree that they have each pledged
certain collateral for the benefit of Lender under Pledge Agreements dated
contemporaneously herewith. Each undersigned Guarantor (including XOX) further
agrees that each such Guarantor shall not transfer, secrete, convey, or dispose
of any of the assets of such Guarantor, without the express written consent of
the Lender, until all amounts owed to Lender by Borrower are paid in full.
Dated: 3-11-04 /s/ X.X. Xxxxxxx
----------------------------- -----------------------------
XXXXXXX X. XXXXXXX
Dated: 3/12/04 /s/ Xxxxxxx X. Xxxxxxx
----------------------------- -----------------------------
XXXXXXX X. XXXXXXX
Dated: 3/3/04 /s/ Xxxxx X. Xxxxx
----------------------------- -----------------------------
Xxxxx Xxxxx
XOX CORPORATION
Dated: 3/12/04 By /s/ Xxxxxxx X. Xxxxxxx
----------------------------- -----------------------------
XXXXXXX X. XXXXXXX
Its President
Page 4 of 4
EXHIBIT 10.27.3
THIRD PARTY PLEDGE AGREEMENT
AND CONSENT
Date: 3-11, 2004
PLEDGOR: Xxxxxxx and Partners, Incorporated SECURED
Profit Sharing Plan and Trust PARTY: Data Sales Co., Inc.
c/o Xxxxxxx X. Xxxxxxx 0000 Xxxx Xxxxxxxxxx Xxxx.
000 Xxxx Xxxxxx Xxxx Xxxxxxxxxx, Xxxxxxxxx 00000
Xxxxxxx, Xxxxxxxxx 00000
Borrowers: Tele Digital Development, Inc.
Federal Tax I.D. No.: 00-0000000
Xxxxxxx X. Xxxxxxx
Soc. Sec. No.: ###-##-#### (collectively "BORROWERS")
1. This Agreement secures the following (called the "OBLIGATIONS"):
All debts, liabilities and obligations of every type and description
which the Borrower may now or at any time owe to the Secured Party, including,
but not limited to, all principal, interest, and other charges, fees, expenses,
attorneys' fees, and amounts, whether now existing or hereafter arising, direct
or indirect, due or to become due, absolute or contingent, primary or secondary,
liquidated or unliquidated, independent, joint, several, or joint several.
2. To secure the payment and performance of the Obligations, the
Pledgor grants the Secured Party a security interest (the "SECURITY INTEREST")
in, and assigns to the Secured party, the following property (called the
"COLLATERAL"):
All limited partner interests now owned or hereafter acquired by
Pledgor in Pyramid Partners, L.P., including, without limitation, all
rights to receive distributions and all rights to take capital
withdrawals.
together with all certificates, other instruments, chattel paper, investment
property, options, rights, interests, dividends and other distributions issued
as an addition to, in substitution or in exchange for, or on account of, the
same all whether now existing or hereafter arising and whether now owned or
hereafter acquired by the Pledgor, and all proceeds of the foregoing property,
including without limitation all accounts, instruments, chattel paper,
investment property, other rights to payment, deposit accounts, money and
general intangibles related to the foregoing property.
3. If the Pledgor has or receives any certificate, other instrument,
investment property, option, right, interest, dividend, or other distribution,
the Pledgor shall hold or accept
the same as the Secured Party's agent, in trust for the Secured Party, and shall
deliver the same upon request to the Secured Party in the exact form received
with, as applicable, the Pledgor's endorsement or appropriate assignment duly
executed in blank in form acceptable to the Secured Party, to be held by the
Secured Party under the terms of this Agreement; provided, until the occurrence
of an Event of Default, the Pledgor shall be entitled to utilize the Collateral
and receive for the Pledgor's own use cash interest and cash dividends on the
Collateral and shall retain all voting rights with respect to the Collateral. At
any time the Secured Party, at its option, may have any or all of the Collateral
registered in its name or that of its nominee.
4. The Pledgor represents and warrants to the Secured Party and agrees
as follows:
a. The Pledgor's address is shown at the beginning of this
Agreement. The Pledgor has not used any trade name, assumed name, or
other name except the Pledgor's name stated above. The Pledgor shall
give the Secured Party prior written notice of any change of the
Pledgor's name or address. The Pledgor has power and authority to enter
into and perform this Agreement. The Pledgor's Internal Revenue Service
taxpayer identification number or social security number is shown
above.
b. The Pledgor has absolute legal and beneficial title to the
Collateral free and clear of all pledges, security interests, liens,
encumbrances and charges except the Security Interest. All stock
constituting Collateral has been duly and validly issued and is fully
paid and nonassessable. There is no restriction on the transfer of any
stock or securities constituting Collateral except as provided on the
face of the certificates evidencing the same delivered or to be
delivered to the Secured Party. No financing statement covering any
Collateral is on file in any public office.
c. The Pledgor, at its expense, shall defend the Collateral
and the Security Interest against the claims and demands of all persons
other than the Secured Party. The Pledgor shall not create, incur or
permit to exist any pledge, security interest, lien, encumbrance or
charge in or with respect to any Collateral, except the Security
Interest. The Pledgor shall promptly pay when due all taxes and other
charges levied or assessed upon or against any Collateral, and shall
execute such writings and take such other actions with respect to the
Collateral as the Secured Party may request.
d. The Pledgor shall deliver to the Secured Party upon request
all notices, reports and other writings received by the Pledgor as
owner or holder of the Collateral.
e. If, in the judgment of the Secured Party, the Collateral
decreases in value, or if the Collateral becomes unsatisfactory to the
Secured Party, the Pledgor, at the request of the Secured Party, shall
provide the Secured Party with additional collateral security
satisfactory and in form acceptable to the Secured Party.
5. The Secured Party shall be deemed to have fulfilled its duty of care
with respect to any Collateral in its possession if the Secured Party exercises
reasonable care in physically safekeeping such Collateral, and with respect to
any Collateral in the possession of a bailee or other third person selected by
the Secured Party if the Secured Party exercises reasonable care
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in the selection of the bailee or other person. The Secured Party shall have no
other duty, liability or responsibility with respect to any Collateral.
6. The Secured Party, in the name of the Pledgor or otherwise, whether
or not an Event of Default has occurred, shall have authority but shall not be
obligated to demand, collect, receive and receipt for, compromise, compound,
settle and give acquittance for and prosecute and discontinue any suits or
proceedings in respect of any Collateral; take any action which the Secured
Party may deem necessary with respect to the Collateral, including without
limitation performing any contract or agreement and endorsing in the name of the
Pledgor any checks, drafts, notes or other writings related to any Collateral;
and apply any proceeds against any of the Obligations as the Secured Party, in
its sole discretion, may determine, whether the same shall then be due or not
due. The Pledgor shall not agree to any modification, amendment, subordination
or cancellation of any Collateral without the prior written consent of the
Secured Party.
7. The occurrence of any of the following events shall constitute an
"Event of Default: (a) any breach or default in the payment or performance of
any of the Obligations; or (b) any breach or default under the terms of this
Agreement or any other note, obligation, mortgage, assignment, guaranty, other
agreement, or other writing heretofore, herewith or hereafter existing to which
the Pledgor, the Borrower, or any other maker, endorser, guarantor or surety of
any of the Obligations or any other person or entity providing security for any
of the Obligations or for any guaranty of any of the Obligations is a party; or
(c) the insolvency, death, dissolution, liquidation, merger or consolidation of
the Pledgor, the Borrower, or any such maker, endorser, guarantor, surety or
other person or entity; or (d) any appointment of a receiver, trustee or similar
officer of any property of the Pledgor, the Borrower, or any such maker,
endorser, guarantor, surety or other person or entity; or (e) any assignment for
the benefit of creditors of the Pledgor, the Borrower, or any such maker,
endorser, guarantor, surety or other person or entity; or (f) any commencement
of any proceeding under any bankruptcy, insolvency, receivership, dissolution,
liquidation or similar law by or against the Pledgor, the Borrower, or any such
maker, endorser, guarantor, surety or other person or entity; or (g) the sale,
lease or other disposition (whether in one or more transactions) to one or more
persons or entities of all or a substantial part of the assets of the Pledgor,
the Borrower, or any such maker, endorser, guarantor, surety or other person or
entity; or (h) the Pledgor, the Borrower, or any such maker, endorser,
guarantor, surety or other person or entity takes any action to go out of
business, or to revoke or terminate any agreement, liability or security in
favor of the Secured Party; or (i) the entry of any judgment or other order for
the payment of money in the amount of $10,000.00 or more against the Pledgor,
the Borrower, or any such maker, endorser, guarantor, surety or other person or
entity; or (j) the issuance or levy of any writ, warrant, attachment,
garnishment, execution or other process against any property of the Pledgor, the
Borrower, or any such maker, endorser, guarantor, surety or other person or
entity; or (k) the attachment of any tax lien to any property of the Pledgor,
the Borrower, or any such maker, endorser, guarantor, surety or other person or
entity; or (l) any statement, representation or warranty made by the Pledgor,
the Borrower, or any such maker, endorser, guarantor, surety or other person or
entity (or any representative of the Pledgor, the Borrower, or any such maker,
endorser, guarantor, surety or other person or entity) to the Secured Party at
any time shall be incorrect or misleading in any material respect when made; or
(m) there is a material adverse change in the condition (financial or
otherwise), business or
3
property of the Pledgor, the Borrower, or any such maker, endorser, guarantor,
surety or other person or entity; or (n) the Secured Party shall in good faith
believe that the prospect for due and punctual payment or performance of any of
the Obligations, this Agreement or any other note, obligation, mortgage,
assignment, guaranty, or other agreement heretofore, herewith or hereafter given
to or acquired by the Secured Party in connection with any of the Obligations is
impaired.
8. Upon the commencement of any proceeding under any bankruptcy law by
or against the Pledgor, the Borrower or any such maker, endorser, guarantor,
surety or other person or entity, all Obligations automatically shall become
immediately due and payable in full, without declaration, presentment, or other
notice or demand, all of which are hereby waived by the Pledgor. In addition,
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 and remedies:
(a) declare all Obligations to be immediately due and payable in full and the
same shall thereupon be immediately due and payable in full, without presentment
or other notice or demand, all of which are hereby waived by the Pledgor; (b)
exercise all voting and other rights and options with respect to the Collateral;
(c) exercise and enforce any and all other rights and remedies available upon
default under this Agreement, the Uniform Commercial Code and any other
applicable agreements and laws. If notice to the Pledgor of any intended
disposition of Collateral or other action is required, such notice shall be
deemed reasonably and properly given if mailed by regular or certified mail,
postage prepaid, to the Pledgor at the address stated at the beginning of this
Agreement or at the most recent address shown in the Secured Party's records, at
least ten (10) days prior to the action described in such notice.
9. If the Secured Party elects to exercise its right to sell or
otherwise dispose of any Collateral and if, in the judgment of the Secured
Party, it is necessary to have the Collateral to be disposed of registered under
the provisions of the Securities Act of 1933, as amended (hereinafter the
"ACT"), or any other law, the Pledgor shall use the Pledgor's best efforts to
cause the issuer of the Collateral and its directors and officers to take all
actions necessary to register the Collateral to be disposed of under the
provisions of the Act or such other law, and otherwise comply with all
provisions of the Act and all other applicable laws as the Secured Party deems
necessary in order to dispose of such Collateral, all at the expense of the
Pledgor. Notwithstanding the foregoing, the Pledgor recognizes that the Secured
Party may be compelled to resort to one or more private sales of Collateral to a
restricted group of purchasers who will be obligated to agree, among other
things, to acquire the Collateral for their own account, for investment and not
with a view to distribution or resale thereof. The Pledgor acknowledges and
agrees that any such private sales may be at prices and on term less favorable
to the Secured Party than those of public sales, and agrees that such private
sales shall be deemed to have been made in a commercially reasonable manner and
that the Secured Party shall have no obligation to delay the sale of any
Collateral to permit the issuer thereof to register it under the Act or any
other law or take any other action.
10. All of the Secured Party's advances, fees, charges, costs and
expenses, including, but not limited to, audit fees and expenses and reasonable
attorneys' fees and legal expenses, in connection with this Agreement, the
Collateral, the Security Interest and the Obligations, together with interest
thereon from the date incurred or paid by the Secured Party at the highest
4
rate then applicable to any of the Obligations, shall be secured hereunder and
shall be paid by the Pledgor to the Secured Party on demand.
11. The Pledgor 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, the Collateral, the Security Interests or
any of the Obligations, waives any argument that venue in such forums is not
convenient, and agrees that any litigation initiated by the Pledgor against the
Secured Party in connection with this Agreement, the Collateral, the Security
Interest or any of the Obligations shall be venued in either the Minnesota
District Court of the county where the Secured Party is located, or the United
States District Court, District of Minnesota.
12. The Pledgor waives all claims, rights, and remedies which the
Pledgor may now have or hereafter acquire against any person or entity at any
time now or hereafter liable to repayment or performance of any of the
Obligations and as to any collateral security, including, but not limited to,
all claims, rights and remedies of contribution, indemnification, exoneration,
reimbursement, recourse and subrogation, whether or not such claim, right or
remedy arises in equity, under contract, by statute, under common law or
otherwise, whether or not any of the Obligations have been fully paid or
performed, and all payments and recoveries under this Agreement shall be
considered equity investments by the Pledgor in the Borrower; provided, nothing
contained in this Agreement shall deprive the Pledgor of any claim, right or
remedy, after all of the Obligations have been fully paid and performed, against
any person or entity other than the Borrower.
13. No act, omission or thing, except full payment and performance of
the Obligations, which but for this provision could act as a termination or
impairment of the Security Interest or any obligation under this Agreement shall
in any way terminate, impair or otherwise affect the Security Interest or any
obligation under this Agreement. All terms in this Agreement are defined in the
Minnesota Uniform Commercial Code (the "UCC") shall have the meanings set forth
in the UCC. A carbon, photographic or other reproduction of this Agreement is
sufficient as a financing statement. No provision of this Agreement can be
waived, modified, amended, abridged, supplemented, terminated or discharged and
the Security Interest cannot be released or terminated, except by a writing duly
executed by the Secured Party. A waiver shall be effective only in the specific
instance and for the specific purpose given. No delay or failure to act shall
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, concurrently or successively at the Secured Party's
option, and the exercise or enforcement of any one such right or remedy shall
not be a condition to or bar the exercise or enforcement of any other. This
Agreement shall bind and benefit the Pledgor and the Secured Party and their
respective heirs, representatives, successors and assigns and shall take effect
when executed by the Pledgor and delivered to the Secured Party, and the Pledgor
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, payment and
5
performance of the Obligations. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Minnesota
(excluding conflict of law rules).
THE PLEDGOR REPRESENTS AND WARRANTS TO THE SECURED PARTY AND AGREES
THAT THE PLEDGOR HAS READ ALL OF THIS AGREEMENT AND UNDERSTANDS ALL OF THE
PROVISIONS OF THIS AGREEMENT.
XXXXXXX AND PARTNERS,
INCORPORATED PROFIT SHARING
PLAN AND TRUST
By /s/ X.X. Xxxxxxx
---------------------------------------
XXXXXXX X. XXXXXXX
Its Sole Trustee
CONSENT
The undersigned, as president of Xxxxxxx Capital Management, Inc., the
sole general partners of Pyramid Partners, L.P., hereby consents to the grant of
the Security Interest described herein and agrees that upon an Event of Default,
the Secured Party will have the power to exercise all of Pledgor's rights,
including, but not limited to, Pledgor's rights to make voluntary withdrawals of
capital under Section 10.1 of the Partnership Agreement for Pyramid Partners,
L.P., subject to the terms and conditions stated in the foregoing Section 10.1
of the Partnership Agreement for Pyramid Partners, L.P.
/s/ X.X. Xxxxxxx
------------------------------------------------
XXXXXXX X. XXXXXXX
President
Xxxxxxx Capital Management, Inc., the
Sole General Partner of Pyramid Partners, L.P.
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