EXHIBIT 10.27
PERSONAL GUARANTY AGREEMENT
May 3, 2002
THIS GUARANTY AGREEMENT, made and entered on the date above shown (this
"GUARANTY"), by XXXXXXX X. XXXXXXX, XXXXXXX X. XXXXXXX AND XXXXX XXXXX, as
guarantors (the "GUARANTORS"), for the benefit of DATA SALES CO., INC. as
Lender.
WITNESSETH:
PRELIMINARY STATEMENT: The Guarantors are officers of and/or owners of and/or
principals and/or investors in TELE DIGITAL DEVELOPMENT, INC. a Minnesota
corporation (the "BORROWER") which may receive financial accommodations from
Lender, including a loan of $1,308,000.00 (referred to herein as the "LOAN") as
may be described in Notes and related loan documents (collectively the "LOAN
DOCUMENTS"). It is a condition precedent to the making of the financial
accommodations by Lender that the Guarantors shall have executed and delivered
this Guaranty.
NOW, THEREFORE, in consideration of the premises and to induce Lender to make
the Loan, the Guarantors hereby agrees as follows:
SECTION 1. Guaranty. The Guarantors hereby jointly and severally unconditionally
guarantee the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all obligations of Borrower now or hereafter
existing under the Loan, whether for principal, interest, fees, attorneys' fees,
expenses or otherwise (such obligations being the "OBLIGATIONS"), and agree to
pay any and all expenses incurred by Lender in enforcing any rights under this
Guaranty.
SECTION 2. Guaranty Absolute. The Guarantors unconditionally guarantee that the
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of Lender with
respect thereto. The liability of the Guarantors under this Guaranty shall be
absolute and unconditional irrespective of:
(A) Any lack of validity or enforceability of any document evidencing to
the Loan, or any other agreement or instrument relating thereto;
(B) Any change in the time, manner or place of payment of, or in any other
term of, all or any of the Obligations or any other amendment or waiver
of or any consent to departure from the Loan Documents, or any other
agreement or instrument relating thereto;
(C) Any exchange, release or nonperfection of any collateral or any release
or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Obligations; or
-1-
EXHIBIT 10.27
(D) Any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Borrower in respect of the Obligations
or any Guarantors in respect of this Guaranty.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by Lender upon the insolvency, bankruptcy or
reorganization of Borrower or otherwise, all as though such payment had not been
made.
SECTION 3. Waiver. The Guarantors hereby waive promptness, diligence, notice of
acceptance and any other notice with respect to any of the Obligations and this
Guaranty and any requirement that Lender protect, secure, perfect or insure any
security interest or lien or any property subject thereto or exhaust any right
or take any action against Borrower or any other person or entity, including,
without limitation, any other guarantor or any collateral.
SECTION 4. Subrogation. While any portion of the Loan remains unpaid, the
Guarantors also hereby waive any claim, right or remedy which such Guarantors
may now have or hereafter acquire against Borrower which arises hereunder and/or
from the performance by such Guarantors of their respective obligations
hereunder including, without limitation, any claim, remedy or right of
subrogation, reimbursement, exoneration, contribution, indemnification, or
participation in any claim, right or remedy against Borrower, whether such
claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise.
SECTION 5. Representations and Warranties; Financial Statements. The Guarantors
hereby represent and warrant that: (a) the Guarantors have full power and
authority to enter into and perform their respective obligations under this
Guaranty; (b) this Guaranty has been duly and validly executed and delivered by
the Guarantors and constitutes a valid and enforceable obligation of the
Guarantors, subject to bankruptcy or other laws affecting creditors' rights
generally and to general equitable principles; (c) the execution, delivery and
compliance with the terms hereof shall not contravene or constitute a default
under any indenture, commitment, agreement or other instrument to which the
Guarantors are bound or any judgment, order or decree to which the Guarantors
are subject; (d) there is no suit, action, proceeding or investigation pending
or threatened against or affecting the Guarantors (or any basis therefor) at law
or inequity or by or before any court, arbitrator, administrative agency or
other federal, state or local governmental authority which individually or in
the aggregate, if adversely determined, might have a material adverse effect on
the Guarantors' ability to perform, or affect the validity as to the Guarantors
of, the obligations of the Guarantors hereunder or as contemplated hereby; (e)
information, including, but not limited to, financial information provided by
the Guarantors to Lender, is true and correct and does not state any untrue fact
or fail to state any material fact necessary to reflect the financial condition
of the Guarantors as of the date given and the date hereof; (f) the making of
the Loan by Lender pursuant to the Agreement and the guarantee of payment of the
Obligations under this Guaranty will result in a direct financial benefit to the
Guarantors; (g) the Guarantors have read and approved the terms of the Loan
Documents.
SECTION 6. Amendments, Etc. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the Guarantors here from shall in any
event be effective unless
-2-
EXHIBIT 10.27
the same shall be in writing and signed by Lender, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 7. Addresses for Notices. All notices and other communications provided
for hereunder shall be in writing and, if to the Guarantors, mailed or delivered
to the Guarantors by overnight courier, addressed to the Guarantors at the
addresses specified on the signature page hereunder; if to Lender, mailed or
delivered to it by overnight courier, addressed to it at the address of Lender
specified in the Note, or as to each party at such other address as shall be
designated by such party in a written notice to the other party. All such
notices and other communications shall, when mailed or sent by overnight
courier, respectively, be effective when deposited in the mails or delivered to
the courier, respectively, addressed as aforesaid.
SECTION 8. No Waiver; Remedies. No failure on the part of Lender to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 9. (Intentionally left blank).
SECTION 10. Continuing Guaranty. This Guaranty is a continuing guaranty and
shall: (i) remain in full force and effect until payment in full of the
Obligations and all other amounts payable under this Guaranty (but shall be
subject to reinstatement in the circumstances described in the last sentence of
Section 2 hereof), (ii) be binding upon the Guarantors and their respective
personal representatives, heirs and assigns, and (iii) inure to the benefit of
and be enforceable by Lender and its successors, transferees and assigns.
SECTION 11. Governing Law; Severability. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of Minnesota. If any
provision of this Guaranty shall be held to be invalid by any court of competent
jurisdiction, the invalidity of such provision shall not affect any of the
remaining provisions.
SECTION 12. Jurisdiction. The Guarantors hereby irrevocably agrees that any
legal action or proceedings against said Guarantors with respect to this
Guaranty may be brought in the District Courts of Hennepin County in the State
of Minnesota, the Guarantors hereby irrevocably submit to the jurisdiction of
each such court and hereby irrevocably waives any and all objections that said
Guarantor may have as to jurisdiction or venue in any of such courts. The
Guarantors acknowledge that the Guarantors have received sufficient
consideration for any inconvenience which may be caused by any legal action
brought in the State of Minnesota, and agrees that the enforcement of this
Section 12 against said Guarantors would not be unreasonable or unfair under all
the circumstances of the Loan or this Guaranty.
SECTION 13. Reinstatement. In the event any payment made to Lender is
subsequently avoided or the Lender is required to disgorge the same, this
Guaranty shall be deemed to be continuing in full force and effect, with respect
to any such avoided or disgorged payment, as an unpaid
-3-
EXHIBIT 10.27
Obligation, and the liability of the Guarantors to pay such unpaid Obligation
shall not be deemed to be satisfied or diminished in any respect.
SECTION 14. Counterparts. This Guaranty may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Guaranty is effective for all
purposes with respect to any above-named Guarantor upon execution, irrespective
of the failure of any other above-named Guarantor to execute this Guaranty.
IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be duly executed
and delivered as of the date first above written.
/s/ X.X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Address: 0000 Xxxxx Xxxx Xxxx
Xxxxx, Xxxxxxxxx 00000
/s/ X. X. Xxxxx
---------------------------------
Xxxxx Xxxxx
Address: 0000 Xxxxx Xx.
Xxxxx, XX 00000
/s/ Xxxxxxx Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Address: 000 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
-4-
EXHIBIT 10.27
$1,308,000.00
PROMISSORY NOTE
Dated: May 3, 2002
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
DATA SALES CO., INC. ("DSC") at such place as any present or future holder of
this Note may designate from time to time, (a) the principal sum of
$1,308,000.00, plus interest thereon from the date of each advance in whole or
in part included in such amount until this Note is fully paid, computed on the
basis of the actual number of days elapsed and a 360-day year, at an annual rate
that shall always be 13.00 % per annum, plus (b) an amount equal to 2% of the
principal sum of this Note, on or before the Maturity Date.
This Promissory Note matures and is fully due and payable, including
all accrued and unpaid interest, and any other amounts due under this Promissory
Note ninety (90) days after the above date (the "MATURITY DATE").
All or any part of the unpaid balance of this Note may be prepaid at
any time without penalty. At the option of the then holder of this Note, any
payment under this Note may be applied first to the payment of other charges,
fees, and expenses under this Note and any other agreement or writing in
connection with this Note, second to the payment of interest accrued through the
date of payment, and third to the payment of principal. In the event this Note
is not paid in full on or before the Maturity Date, a late payment fee of 3% of
the unpaid balance as of the Maturity Date shall be paid by the undersigned.
The occurrence of any of the following events shall constitute an Event
of Default under this Note: (i) any default in the payment, of this Note and
such payment default continues for a period of ten (10) days; or (ii) any
default under the terms of any other note, obligation, agreement, mortgage, or
other writing heretofore, herewith or hereafter given to or acquired by any
present or future holder of this Note to which any maker, endorser, guarantor,
or surety of this Note or any other person providing security for this Note or
for any guaranty of this Note is a party; or (iii) the insolvency, death,
dissolution, liquidation, merger, or consolidation of any such maker, endorser,
guarantor, surety, or other person, or (iv) (intentionally left blank) or (v)
any appointment of a receiver, trustee, or similar officer of any property of
any such maker, endorser, guarantor, surety, or other person; or (vi) any
assignment of any such maker, endorser, guarantor, surety, or other person; or
(vii) any agent of any proceeding under any bankruptcy, insolvency, dissolution,
liquidation, or similar law by or against any such maker, endorser, guarantor,
surety, or other person; or (viii) the sale, lease, or other disposition
(whether in one transaction or in a series of transactions) to one or more
persons of all or a substantial part of the assets of any such maker, endorser,
guarantor, surety, or other person; or (ix) (intentionally left blank); or (x)
the entry of any judgment or other order for the payment of money in the amount
of $50,000.00 or more against any such maker, endorser, guarantor, surety, or
other person, which judgment or order is not subject to a stay, and is not
discharged in a manner acceptable to the then holder of this Note within thirty
(30) days after such entry; or (xi) the issuance or levy of
any writ, warrant, attachment, garnishment, execution, or other process against
any property of any such maker, endorser, guarantor, surety, or other person; or
(xii) the attachment of any tax lien to any property of any such maker,
endorser, guarantor, surety, or other person; or (xiii) there is a material
adverse change in the condition (financial or otherwise), business, or property
of any such maker, endorser, guarantor, surety, or other person.
Upon the commencement of any proceeding under any bankruptcy law by or
against any such maker, endorser, guarantor, surety, or other person, this Note
automatically shall become immediately due and payable for the entire unpaid
principal balance of this Note plus accrued interest and other charges, fees,
and expenses under this Note without any declaration, presentment, demand,
protest, or other notice of any kind. Upon the occurrence of any other Event of
Default and at any time thereafter, the then holder of this Note may, at its
option, declare this Note to be immediately due and payable and thereupon this
Note shall become immediately due and payable for the entire unpaid principal
balance of this Note plus accrued interest and other charges on this Note
without any presentment, demand, protest, or other notice of any kind.
The undersigned (i) waive demand, presentment, protest, notice of
protest, notice, dishonor, and notice of nonpayment of this Note; (ii) agree to
pay on demand all fees, costs, and expenses of all present and future holders of
this Note in connection with this Note and any security and guaranties for this
Note, including, but not limited to, audit fees and expenses and reasonable
attorneys' fees and legal expenses, plus interest on such amounts at the rate
set forth in this Note; and (iii) consent to the personal jurisdiction of the
state and federal courts located in the State of Minnesota in connection with
any controversy related in any way to this Note or any security or guaranty for
this Note, waive any argument that venue in such forums is not convenient, and
agree that any litigation initiated by the undersigned against the DSC or any
other present or future holder of this Note relating in any way to this Note or
any security or guaranty for this Note shall be venued in either the District
Court of Dakota County, Minnesota. Interest on any amount under this Note shall
continue to accrue, at the option of any present or future holder of this Note,
until such holder receives final payment of such amount in collected funds in
form and substance acceptable to such holder.
No waiver of any right or remedy under this Note shall be valid unless
in writing executed by the holder of this Note, and any such waiver shall be
effective only in the specific instance and for the specific purpose given. All
rights and remedies of all present and future holders of this Note shall be
cumulative and may be exercised singly, concurrently, or successively. The
undersigned shall be jointly and severally liable under this Note, and the term
"undersigned" wherever used in this Note shall mean the undersigned or any one
or more of them. This Note shall bind the undersigned and the successors and
assigns of the undersigned. This Note shall be governed by and construed in
accordance with the internal laws of the State of Minnesota (excluding conflict
of law rules).
THE UNDERSIGNED PRESENT, CERTIFY, WARRANT, AND AGREE THAT THE
UNDERSIGNED HAVE READ ALL OF THIS NOTE AND UNDERSTAND ALL OF THE PROVISIONS OF
THIS NOTE.
TELE DIGITAL DEVELOPMENT, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------
Its: PRES/CEO
-------------------------
Exhibit 10.27
SECURITY AGREEMENT
Dated: May 3, 2002
THIS SECURITY AGREEMENT (this "AGREEMENT") is made on the date above shown by
and between DATA SALES CO., INC. ("DSC"), and TELE DIGITAL DEVELOPMENT, INC.
("BORROWER").
WITNESSETH:
WHEREAS, Borrower has requested, and DSC may extend financial accommodations to
Borrower, including a loan of $1,308,000.00 (hereunder collectively the "LOAN")
which shall be secured by the collateral referred to below. The Loan, this
Agreement and other documents related to the transactions are collectively
referred to herein as the "LOAN DOCUMENTS"; and
WHEREAS, DSC is willing to extend financial accommodations only upon the
security of the various Loan Documents, guarantys, and this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual undertakings
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 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 Borrower may now, or at any time
hereafter, owe to DSC, or any renewals, replacements or extensions thereof,
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 herein collectively referred to as the "OBLIGATIONS", Borrower
hereby grants to DSC a security interest (the "SECURITY INTEREST") in all assets
of Borrower, together with all accessions, products, replacements, substitutes,
and proceeds thereof, including but not limited to the following (the
"COLLATERAL"):
A. All accounts, deposit accounts, commercial tort claims, credit
balances, rights to payment, receivables, contract rights,
investment property, instruments, chattel paper, documents,
loans and obligations receivable, tax refunds, unbilled time
and fees, and work in process of Borrower, letter of credit
rights, software, and money, together with the proceeds from
insurance and condemnation relating to any of the property of
Borrower in which Bank has a security interest, all forms of
obligations whatsoever owing to Borrower, together with all
right, title, security and guaranties with respect to each
receivable or obligation owed to Borrower;
B. All present and future inventory, wherever located, including,
but not limited to all merchandise, raw materials, parts,
supplies, work in process, finished products
intended for sale, rent, or lease, and all packaging materials
of every kind and description now or at any time hereafter
owned by and in the custody or possession, actual or
constructive, of Borrower, including such inventory as is
temporarily out of custody or possession of Borrower and
including any returns upon any accounts or other proceeds,
including insurance proceeds, resulting from the sale or
disposition of any of the foregoing (the "INVENTORY");
C. All equipment of Borrower, whether now owned or hereafter
acquired, including but not limited to all present and future
machinery, furniture, fixtures, medical equipment and devices,
and equipment, shop equipment, office and recordkeeping
equipment, parts and tools, and the goods described in any
equipment schedule or list furnished to Bank by Borrower (but
no such schedule or list need be furnished in order for the
security interest to be valid as to all of Borrower's
equipment) (the "EQUIPMENT"); and
D. All tangible personal property and chattels, including but not
limited to all plumbing, heating, and lighting apparatus,
mantels, floor coverings, furniture, beds, furnishings and
supplies, draperies, screens, storm windows and doors,
awnings, shrubbery, plants, boilers, tanks, machinery, stoves,
blinds, gas, electric, air-conditioning, heating, ventilating
and sprinkling and other fire prevention or fire extinguishing
equipment of whatsoever kind and nature, if any, and all other
articles of personal property which are located on or used or
usable in connection with the management, operation and
maintenance of the premises of the Borrower; and
E. All of Borrower's right, title and interest in and to any and
all licenses, permits, permissions and approvals relating to
the current and future use, occupancy, maintenance and
operation pertaining any premises occupied by Borrower,
including all federal, state and local governmental
requirements including, without limitation, all environmental
and other use permits, and those relating to sewage disposal
and water (the "LICENSES AND PERMITS"); and
F. All general intangibles of Borrower, whether now owned or
hereafter acquired, including, but not limited to,
applications for patents, patents, copyrights, trademarks,
trade secrets, good will, tradenames, customers lists, permits
and franchises, and the right to use Borrower's name (the
"GENERAL INTANGIBLES").
G. Without limiting the foregoing, all of Borrower's title and
interest in telephone hardware inventory, and the proceeds of
the sale(s) thereof. Borrower agrees that it will instruct, in
writing, any purchaser of such inventory to remit directly to
DSC or to a lock box designated by DSC all payment(s) for such
inventory. Borrower will immediately upon any sale(s) of such
inventory, delivery to DSC a copy of any sale(s) agreement,
purchase order, customer invoice, and other documents
reflecting such sale(s).
2
Upon default pursuant to the provisions of this Agreement, DSC becomes
entitled to all remedies set forth herein or otherwise provided to
secured parties by all applicable laws, including the Uniform
Commercial Code as adopted in the State of Minnesota.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Borrower represents, warrants and agrees that:
2.1 Borrower is a Minnesota corporation in good standing under the laws of
the State of Minnesota.
2.2 (Intentionally left blank)
2.3 Borrower has offices at 0000 X. 00xx Xxxxxx, Xxxxx 0, Xxxxxxxxxxx, XX
00000.
2.4 Borrower has (or will have at the time Borrower acquires rights in
Collateral hereafter arising) absolute title to each item of Collateral
free and clear of all security interests, liens, and encumbrances,
except this Security Interest and a security interest held by
Associates Bank. Borrower will defend the Collateral against all claims
or demands of all persons other than DSC and Associates Bank. Borrower
will not sell or otherwise dispose of the Collateral without the prior
written consent of DSC, other than in the ordinary course of business.
2.5 (Intentionally left blank)
2.6 The Collateral is a valid, genuine, and legally enforceable contract,
subject to no existing defense, set-off, or counterclaim of the obligor
named therein or in Borrower's respective records pertaining thereto as
being obligated to pay such obligation. Borrower will not agree to any
modification or amendment nor agree to any cancellation of any such
obligation without DSC's prior written consent, and will not
subordinate any such right to payment to claims of other creditors of
such account debtor or other obligor.
2.7 Borrower will:
A. (Intentionally left blank)
B. Promptly pay all taxes and other governmental charges levied
or assessed upon or against any Collateral or upon or against
the creation, perfection, or continuance of the Security
Interest;
C. Keep all Collateral free and clear of all security interests,
liens, and encumbrances except this Security Interest and the
security interest of Associates Bank and deliver physical
possession of all Collateral to DSC upon request, subject to
the rights of Associate Bank.
3
D. At all reasonable times, permit DSC or its representative to
examine or inspect any Collateral wherever located, and to
examine, inspect, and copy Borrower's books and records
pertaining to the Collateral and their business and financial
condition and to discuss with account debtors' and other
obligors' requests for verifications of amounts owed to
Borrower;
E. Keep accurate and complete records pertaining to the
Collateral and pertaining to Borrower's business and financial
conditions and submit to DSC such periodic reports concerning
the Collateral and Borrower's business and financial
conditions as DSC may from time to time reasonably request;
F. Promptly notify DSC of material loss of or material damage to
any Collateral or of any adverse change, known to Borrower, in
the prospect of payment of the greater of Ten Thousand Dollars
($10,000.00) or five percent (5%) of any sums due on or under
any instrument, chattel paper, or account constituting
Collateral;
G. If DSC at any time so requests (whether the request is made
before or after the occurrence of an Event of Default),
promptly deliver to DSC any instrument, document, or chattel
paper constituting Collateral, duly endorsed or assigned by
Borrower;
H. At all times ensure that the Collateral is insured against
risks of fire (including so-called extended coverage), theft,
and such other risks and in such amounts as DSC may reasonably
request, and any loss payable to Borrower thereunder is hereby
assigned by the DSC to the extent of its interest;
I. From time to time execute such financing statements as DSC may
reasonably require in order to perfect the Security Interest
and execute such documents as may be required to have the
Security Interest properly perfected.
J. Pay when due or reimburse DSC on demand for all costs of
collection of any of the Obligations and all other
out-of-pocket expenses (including in each case all reasonable
attorneys' fees) incurred by DSC in connection with the
creation, perfection, satisfaction, protection, defense, or
enforcement of the Security Interest or the creation,
continuance, protection, defense, or enforcement of this
Agreement or any or all of the Obligations, including expenses
incurred in any litigation, bankruptcy, or insolvency
proceedings;
K. Execute, deliver, or endorse any and all chattel paper,
instruments, documents, assignments, security agreements,
financing statements, and other agreements and writings which
DSC may at any time reasonably request in order to secure,
protect, perfect, or enforce the Security Interest and Secured
Party's rights under this Agreement;
L. Not use or keep any Collateral, or permit it to be used or
kept, for any unlawful purpose or in violation of any federal,
state, or local law, statute, or ordinance;
4
M. Permit DSC at any time and from time to time to send requests
(both before and after the occurrence of an Event of Default)
to Borrower's customers for verification of amounts owed to
Borrower; and
If Borrower at any time fails to perform or observe any agreement
contained in this Section 2.7 within a reasonable time after receipt of
written notice from DSC, DSC may (but need not) perform or observe such
agreement on behalf, and in the name, place, and stead, of Borrower
(or, at DSC's option, in DSC's own name) and may (but need not) take
any and all other actions which DSC may obligations under contracts or
agreements with account debtors or other obligors, the procurement and
maintenance of insurance, the execution of financing statements the
endorsement of instruments, and the procurement of repairs,
transportation, or insurance); and, except to the extent that the
effect of such payment would be to render any loan or forbearance of
money usurious or otherwise illegal under any applicable law, Borrowers
shall thereupon pay DSC, on demand, the amount of all moneys expended
and all costs and expenses (including reasonable attorneys' fees)
incurred by DSC in connection with or as a result of DSC's performing
or observing such agreements or taking such actions, together with
interest thereon from the date expended or incurred by DSC at the rate
set forth in the Note. To facilitate the performance or observance by
DSC of such agreements of Borrower, Borrower hereby irrevocably appoint
(which appointment is coupled with an interest) DSC, or its delegate,
as the attorney-in-fact of Borrower with the right (but not the duty)
from time to time to create, prepare, complete, execute, deliver,
endorse, or file, in the name of and on behalf of Borrower, any and all
instruments, documents, financing statements, applications for
insurance, and other agreements and writings required to be obtained,
executed, delivered, or endorsed by Borrower under this Article 2.
ARTICLE 3
COLLECTION RIGHTS OF DSC
DSC may at any time after the occurrence of any Event of Default notify any
third party or any person obligated to pay any amount due, that such chattel
paper, account, or other right to payment has been assigned or transferred to
DSC for security and shall be paid directly to DSC. If DSC so requests at any
time, Borrower will notify such customer and/or account debtor and other
obligors in writing and will instruct such customers and/or account debtors or
other obligors that the payment due is payable directly to DSC or to a special
lock box under the control of the DSC. Borrower hereby authorizes and directs
DSC to deposit into a special collateral account to be established and
maintained with DSC all checks, drafts and cash payments received in said lock
box. All deposits in said collateral account shall constitute proceeds of
Collateral and shall not constitute payment of any Obligation. At its option,
and upon the occurrence of an Event of Default, DSC may, at any time, apply
finally collected funds on deposit in said collateral account to the payment of
the Obligations in such order of application as DSC may determine, or permit
Borrower to withdraw all or any part of the balance on deposit in said
collateral account. If a collateral account is so established, Borrower agrees
that it will promptly deliver to DSC, for deposit into said collateral account,
all payments on accounts and chattel paper received by them. All such payments
shall be delivered to DSC in the
5
form received (except for Borrower's endorsement where necessary). Until so
deposited, all payments on accounts and chattel paper received by Borrower shall
be held in trust by Borrower for and as the property of DSC and shall not be
commingled with any funds or property of Borrower. At any time after DSC or
Borrower gives such notice to an account debtor or other obligor, DSC may (but
need not), in its own name or in Borrower's name, demand, xxx for, collect, or
receive any money or property at any time payable or receivable on account of,
or securing, any such chattel paper, account, or other right to payment, or
grant any extension to, make any compromise or settlement with, or otherwise
agree to waive, modify, amend, or change the obligations (including collateral
obligations) of any such account debtor or other obligor. Until the occurrence
of an Event of Default, DSC shall receive and collect $109.00 of each unit of
Audiovox Dual Mode CDMA Digital Wireless Handheld cellular telephone sale
proceeds and the balance released to Borrower.
ARTICLE 4
ASSIGNMENT OF INSURANCE
Borrower hereby assigns to DSC, as additional security for the payment of the
Obligations, right to any and all moneys (including but not limited to proceeds
of insurance and refunds of unearned premiums) due or to become due under, and
all other rights of Borrower under or with respect to, any and all policies of
insurance covering the vehicles, etc. related to the Collateral, and Borrower
hereby directs the issuer of any such policy to show DSC as loss payee thereon
and to pay any such moneys directly to DSC. Both before and after the occurrence
of an Event of Default, DSC may (but need not), in its own name or in Borrower's
name, execute and deliver proofs of claim, receive all moneys, endorse checks,
and other instruments representing payment of such moneys, and adjust, litigate,
compromise, or release any claim against the issuer of any such policy.
ARTICLE 5
EVENTS OF DEFAULT
Each and any one of the following occurrences shall constitute an event of
default under this Agreement (herein called "EVENT OF DEFAULT"):
A. if Borrower fails to pay to DSC any amount due under any of the Loan
Documents within five (5) days of the date the same becomes due and in
good funds after receipt of written notice from DSC of such failure; or
B. if Borrower shall default in the performance of any agreement, term,
provision, condition, or covenant (other than nonpayment) required to
be performed or observed under the Loan Documents; or
C. if Borrower fails to duly and punctually perform or observe any of the
other covenants or agreements contained herein; or
6
D. a garnishment, summons or a writ of attachment shall be issued against
or served upon DSC for the attachment of any properly of Borrower or
any indebtedness owing to Borrower; or
E. Borrower does not deliver physical possession of Collateral to DSC upon
DSC's request.
ARTICLE 6
REMEDIES UPON EVENT OF DEFAULT
Upon the occurrence of an Event of Default under Article 5 and at any time
thereafter, DSC may exercise any one or more of the following rights and
remedies:
A. Declare the principal balance of the Note to be immediately due and
payable; exercise and enforce any or all rights and remedies available
upon default to a secured party under the Uniform Commercial Code, as
adopted in the State of Minnesota, including but not limited to, the
right to take possession of any collateral, proceeding without judicial
process or by judicial process (without a prior hearing or notice
thereof, which Borrower hereby expressly waives), and the right to
sell, lease, or otherwise dispose of any or all of the Collateral, and
in connection therewith, DSC may require Borrower to assemble the
Collateral and make it available to DSC at a place to be designated by
DSC which is reasonably convenient to both parties, and if notice to
Borrower of any intended disposition of Collateral or any other
intended action is required by law in a particular instance, such
notice shall be deemed commercially reasonable if given (in the manner
specified in Article 9 of UCC) at least ten (10) calendar days prior to
the date of intended disposition or other action);
B. Exercise or enforce any and all other rights or remedies available to
DSC by law or agreement against the Collateral, against Borrower, or
against any other person or property.
DSC is hereby granted a non-exclusive, world-wide, and royalty-free license to
use or otherwise exploit all trademarks, trade secrets, franchises, copyrights,
and patents of Borrower that DSC deems necessary or appropriate to the
disposition of any Collateral.
ARTICLE 7
OTHER PERSONAL PROPERTY
Unless at the time DSC takes possession of any Collateral, or within seven (7)
days thereafter, Borrower gives written notice to DSC of the existence of any
goods, papers, or other property of Borrower, not affixed to or constituting a
part of such Collateral, but which are located or found upon or within such
Collateral, describing such property, DSC shall not be responsible or liable to
Borrower for any action taken or omitted by or on behalf of DSC with respect to
such property without actual knowledge of the existence of any such property or
without actual knowledge that it was located or to be found upon or within such
Collateral.
7
ARTICLE 8
MISCELLANEOUS
8.1 No delay on the part of DSC in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude
other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein specified are
cumulative and are not exclusive of any rights or remedies which DSC
would otherwise have. No amendment, modification or waiver of, or
consent with respect to any provision hereof shall in any event be
effective against DSC unless the same shall be in writing and signed by
DSC.
8.2 The rights, options, powers and remedies granted in this Agreement
shall extend to DSC and to its successors and assigns, and shall be
binding upon Borrower and its successors and assigns and shall be
applicable hereto and to all renewals and/or extensions hereof.
8.3 Borrower agrees to pay all fees and out-of-pocket disbursements
incurred by DSC in connection with the preparation, execution,
delivery, administration and enforcement of this Agreement and the
transaction contemplated herein, and any waivers of amendments with
respect hereto, including all costs of collection and including,
without limitation, the fees and disbursements of counsel (including
inside counsel) for DSC.
8.4 Any notice, request or demand, document, consent or other instrument to
be given, sent or furnished by any party to any other party shall be in
writing and personally delivered or sent by United States regular or
express mail or other similar types of overnight mail delivery. Notice
shall be deemed received: (i) three (3) business days after the same is
deposited in the United States post office box, via regular mail,
postage prepaid; (ii) one (1) business day after the same is deposited
in a United States post office for overnight mail delivery, postage
prepaid or deposited in a similar type of overnight mail delivery; or
(iii) on the same day of personal delivery; if properly addressed to
DSC or Borrower, as applicable, at the address below, or such other
addresses as DSC or Borrower may from time to time specify in writing:
If to Borrower: TELE DIGITAL DEVELOPMENT, INC.
0000 X. 00XX XXXXXX, XXXXX 0
XXXXXXXXXXX, XXXXXXXXX 00000
If to DSC: DATA SALES CO., INC.
0000 XXXX XXXXXXXXXX XXXXXXX
XXXXXXXXXX, XXXXXXXXX 00000
8.5 This Agreement shall be governed by the laws of the State of Minnesota.
8.6 Borrower shall do all things and deliver all instruments requested by
DSC to protect, perfect or enforce any security interest given to DSC
hereunder. A carbon, photographic or other reproduction of this
Agreement may be filed as a financing statement. Borrower
8
hereby authorizes DSC, to the extent permitted by applicable law, to
execute any financing statement, file a copy or duplicate original of
this document or other document or instrument that DSC may require to
perfect, protect or establish a lien or security interest granted to
DSC hereunder or any of the documents and instruments delivered to DSC
pursuant to this Agreement.
8.7 DSC is not a partner or joint venturer with Borrower, and Borrower
agrees to indemnify and hold DSC harmless from any and all damages
resulting from such a construction or alleged construction of the
relationship between the parties.
8.8 This Agreement is a complete statement of the terms and conditions
pursuant to which this Agreement is made. All prior verbal discussions
are merged in the governing terms of this Agreement which is amendable
only pursuant to an exhibit attached for that purpose and separately
signed by both DSC and Borrower, or by other writing stating the terms
of such modification or change and separately signed by both DSC and
Borrower. This Agreement may not be modified verbally, and Borrower
waives reliance on any oral understandings or representations.
8.9 This Agreement may be executed in any number of counterparts (no one of
which need contain the signature of more than one party hereto so long
as each party hereto executes at least one such counterpart), which
counterparts shall have the same effect as if the signature thereto and
hereto were upon the same instrument.
8.10 This Agreement is a continuing obligation on the part of Borrower and
shall be binding upon Borrower, its successors and assigns and shall
inure to the benefit of and be enforceable by DSC and its successors,
transferees and assigns.
8.11 DSC and Borrower hereby waive any right to a trial by jury under any
action or proceeding arising directly or indirectly out of this
Agreement or any other document relating to either loan from DSC to
Borrower.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first above written.
DATA SALES CO., INC. TELE DIGITAL DEVELOPMENT, INC.
By /s/ Xxxxxx Xxxxxx By /s/ Xxxxxxx Xxxxxxx
----------------------- --------------------------
Its Representative Its PRES/CEO
----------------------- --------------------------
9
EXHIBIT 10.27
SUBORDINATION AGREEMENT
RE: TELEPHONE INVENTORY
To: Data Sales Co., Inc. ("DSC")
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Associated Bank Minnesota (the "SECURED PARTY")
hereby agrees as follows:
1. Secured Party holds a first priority security interest in
the assets of Tele Digital Development, Inc. ("TELE DIGITAL") evidenced
by a UCC-1 Statement filed in the office of the Secretary of State of
Minnesota on the 16th day of January, 2001, as Document No. 2290052.
2. To induce DSC to extend a loan in the amount of
$1,308,000.00 (the "LOAN") to Tele Digital, which will be used to
acquire certain telephone hardware inventory described on Exhibit A
attached hereto (the "TELEPHONE INVENTORY"), the Secured party hereby
agrees that any security interest which it may hold or may at any time
hereafter acquire in the Telephone Inventory is, shall be, and shall
remain, fully subordinate for all purposes to any security interest now
held or at any time hereafter granted to or acquired by DSC in the
Telephone Inventory until the Loan is fully paid and satisfied.
3. The Secured Party shall not, without the prior written
consent of DSC, exercise any collection rights with respect to any of
the Telephone Inventory, take possession of, sell or dispose of, or
otherwise deal with, any of the Telephone Inventory, or exercise or
enforce any right or remedy which may be available to the Secured Party
with respect to any of the Telephone Inventory.
4. DSC may exercise collection rights, may take possession of,
sell or dispose of, and otherwise deal with, the Telephone Inventory,
and may exercise and enforce any rights and remedies available to DSC
with respect to the Telephone Inventory.
5. The agreements and undertakings of the Secured Party, and
DCS's rights and remedies, shall not be affected or impaired by (a) any
neglect or omission on the part of DSC to look to, preserve, protect,
care for, insure, take possession of, collect, dispose of, or otherwise
realize upon any of the Telephone Inventory or any other property, or
(b) any other act or omission by DSC or any other person, or any other
thing.
6. The Secured Party shall give notice of this subordination
to any purchaser, assignee or transferee of, or successor to, any
security interest of the Secured Party at the time of any such
purchase, assignment, transfer or succession.
7. No provision of this Agreement can be waived, amended,
modified, supplemented or terminated, except by a writing executed by
the Secured Party and DSC. This Agreement shall bind and benefit the
parties and their respective successors and assigns. This Agreement
shall be governed by and construed in accordance with the laws of the
State of Minnesota. The Secured Party waives notice of DSC's acceptance
of this Agreement.
ASSOCIATED BANK MINNESOTA
By: /s/ Xxxx Xxxxx
--------------------------------
XXXX XXXXX
Its Vice President
STATE OF MINNESOTA )
) ss.
COUNTY OF Hennepin )
--------------
This instrument was acknowledged before me on May 3 , 2002, by XXXX
XXXXX, as Vice President of Associated Bank Minnesota, a Minnesota state bank,
on behalf of the bank.
/s/ Xxxxx X. Xxxxx
------------------------------------
Notary Public
(Seal) My commission expires: Jan. 31, 2005
DATA SALES CO., INC.
By /s/ Xxxxxx Xxxxxx
--------------------------------
Its Representative
-------------------------------
2
EXHIBIT A
12,000 Audiovox Dual Mode CDMA Digital Wireless Handheld cellular telephones
with web browser, standard batteries and desk top chargers, together with all
proceeds thereof, including insurance proceeds, and accessories, substitutes and
replacements
