Exhibit 10.12
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is entered into as of the 18th
day of October, by and between Globus Wireless, Ltd.., a Nevada corporation (the
"Debtor") and Aztec Components, Inc., a California corporation (the "Secured
Party").
1. Creation of Security Interest. In consideration for one or more loans,
advances, or other financial accommodations at any time before, at or after the
date hereof made or extended by the Secured Party to or for the account of the
Debtor, directly or indirectly, as principal, guarantor or otherwise, including
without limitation the loan and other accommodations incident to that certain
Secured Convertible Promissory Note dated October 18, 2000 in the principal
amount of up to Five Million Dollars ($5,000,000) between the Debtor and the
Secured Party (the "Note") and that certain Agreement for Sale of Manufactured
Goods, dated October 18, 2000 between the Debtor and the Secured Party (the
"Sale Agreement"), the Debtor hereby grants to Secured Party a continuing first
priority security interest in the Collateral described in Section 2, to secure
the prompt payment, performance and observance of any and all indebtedness,
liabilities, obligations and agreements of any kind of the Debtor to Secured
Party, however evidenced, whether as principal, surety, endorser, guarantor or
otherwise, whether now existing or hereafter arising, whether direct or
indirect, absolute or contingent, joint or several, due or not due, primary or
secondary, liquidated or unliquidated, secured or unsecured, original, renewed
or extended, whether arising under any guarantee, endorsement or undertaking
which the Secured Party may make or issue to others for the Debtor's account,
whether arising directly or acquired from others, and of all agreements,
documents and instruments evidencing any of the foregoing or under which any of
the foregoing may have been issued, created, assumed or guaranteed, including
without limitation, charges, commissions, interests, expenses, fees, costs and
reasonable attorneys' fees chargeable to Secured Party in connection with any or
all of the foregoing (all of the foregoing being herein referred to, jointly and
severally, as the "Obligations").
2. Description of Collateral. The Collateral is described as follows:
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a) 110,000 Motorola Vader V-3620 Handset boxed units;
b) 340,000 Motorola Profile-300 Handset boxed units;
c) 280,000 Motorola DPC-650 Handset boxed units; and
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(d) All proceeds of any kind of any and all of the foregoing and, to the
extent not otherwise included, all payments under insurance, or any indemnity,
warranty or guaranty, payable by reason of loss of or damage to any of the
foregoing.
3. Term of Security Agreement. This Agreement shall continue, and Secured
Party shall retain its security interest in the Collateral, until (a) payment in
full of all amounts due under or by virtue of the Note, the Sale Agreement and
any provision of this Agreement, and (b) the full performance and discharge of
all Obligations.
4. Representations and Warranties. The Debtor represents and warrants to
the Secured Party that (a) the Debtor owns or will own the Collateral free and
clear of all liens, charges, options, encumbrances, rights or interests of
others of any kind except the security interest created by this Agreement, (b)
the Debtor has the absolute and unrestricted right, power, authority and
capacity to execute and deliver the Note and the Sale Agreement and to grant a
security interest in the Collateral in accordance with the terms of this
Agreement, (c) the Debtor will perform all acts necessary to maintain, preserve
and protect the Collateral, and will pay, prior to delinquency, any taxes,
charges or liens imposed or assessed upon the Collateral, (d) the Debtor will
observe and comply with all applicable laws, rules and regulations in its use of
the Collateral, except where the failure to do so does not materially adversely
affect the Debtor, its business, assets or prospects, (e) this Agreement and the
consummation of the transactions contemplated hereunder creates a valid and
perfected security interest in the Collateral, securing payment and performance
of the Obligations, (f) the Debtor will not assign, sell, lease, transfer,
pledge, hypothecate or otherwise dispose of, or encumber or permit any lien on
the Collateral, except for Debtor right to sell Collateral in the normal course
of its business which Secured Party acknowledges, nor will the Debtor suffer or
permit any of the same to occur with respect to the Collateral, without prior
written notice and consent of the Secured Party, and (g) the Debtor has made,
and will continue to make payment or deposit, or otherwise has provided and will
provide for the payment, when due, of all taxes, assessments or contributions or
other public or private charges which have been or may be levied or assessed
against the Debtor with respect to the Collateral.
5. Default. The occurrence of any one of the following events or conditions
shall constitute a default under this Agreement:
(a) the Debtor fails to make any payment of principal under the Note
within ten (10) days after the same becomes due and payable, which default
is not cured within thirty (30) days after written notice thereof, or any
other default under the terms of the Note;
(b) the Debtor fails to make any payment owing under the Sale
Agreement within twenty (20) days after the same becomes due and payable,
which default is not cured within thirty (30) days after written notice
thereof, or any other default under the terms of the Sale Agreement;
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(c) the Debtor fails to perform or observe any other material
provision contained in the Note or the Sale Agreement, or any other
agreement executed in connection with the transactions contemplated by the
Note or the Sale Agreement, and such default continues for a period of
thirty (30) days after receipt of written notice thereof;
(d) any representation or warranty made in this Agreement, or in any
writing furnished by the Debtor to the Secured Party, is false or
misleading (taken as a whole) in any materially adverse respect on the date
made or furnished; or
(e) the Debtor makes an assignment for the benefit of creditors or
admits in writing its inability to pay its debts as they become due; or an
order, judgment or decree is entered adjudicating the Debtor to be bankrupt
or insolvent under the federal Bankruptcy Code; or the Debtor petitions or
applies for the appointment of a custodian, trustee, receiver or liquidator
of the Debtor, or any substantial parts of the assets of the Debtor; or
commences any proceeding relating to the Debtor under any bankruptcy
reorganization, arrangement, insolvency, readjustment of debt, dissolution
or liquidation law of any jurisdiction; or any such petition or application
is filed, or any such proceeding commenced, against the Debtor and either
(A) the Debtor by any act indicates its approval thereof or (B) such
petition, application or proceeding is not dismissed within 60 days.
6. Secured Party's Remedies. Upon default as specified in section 5,
Secured Party may, at its option, exercise any one or more of the following
rights:
(a) declare all unpaid principal and any other amounts owed under the
Note immediately due and payable;
(b) exercise its rights and remedies under the California Commercial
Code or any other applicable law as a secured creditor having a security
interest in the Collateral, and in particular, sell all or any part of the
Collateral at one or more public or private sales, on at least thirty (30)
days' prior notice and otherwise in a commercially reasonable manner and
upon reasonable terms and conditions, taking into account all the
circumstances; and
(c) exercise any and all further rights or remedies of Secured Party
under the California Commercial Code or any other applicable law.
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To the extent permitted by law, Debtor hereby waives all requirements for
the exercise of any of Secured Party's remedies other than those provided in
this Agreement. Secured Party shall be entitled to enforce any of the remedies
in this section successively or concurrently. The enforcement of any remedy
provided in this section shall not prejudice the right of Secured Party to
pursue any other or further remedy which it may have.
7. Disposition of Proceeds of Sale of Collateral. Secured Party may retain
from the proceeds of any sale of the Collateral provided for in Section 6 an
amount sufficient to pay any and all amounts due Secured Party under the Note,
the Sale Agreement or this Agreement, together with all costs and expenses of
preparing for, promoting, conducting and closing the sale, including reasonable
attorneys' fees. Secured Party shall then pay any balance of the proceeds to the
Debtor, except as otherwise provided by law, subject to the rights of the holder
of any then existing lien of which Secured Party has notice.
8. Estoppel or Waiver. In addition to the specific provisions of Section 6,
Secured Party shall have the right to exercise or to refrain from exercising any
rights, powers or remedies under the Note or this Agreement successively or
concurrently, and this shall not operate to estop or prevent Secured Party from
exercising any further or additional right, power or remedy it may have. No act
or failure to act on the part of Secured Party under this Agreement shall be
deemed or construed to be a waiver of or an election with respect to any right,
power or remedy Secured Party has under this Agreement, the Note or the Sale
Agreement or that may otherwise be available to Secured Party.
9. Further Cooperation. The Debtor agrees that upon reasonable request by
Secured Party, the Debtor will promptly execute and deliver any documents, and
take all additional actions reasonably deemed necessary or desirable by Secured
Party to effect the purposes of this Agreement.
10. Financing Statement.
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(a) Concurrently with the execution and delivery of this Agreement,
the Debtor shall execute and deliver a financing statement on Form UCC-1
with respect to the Collateral and shall cause said financing statement to
be filed with the Uniform Commercial Code Division of the Office of the
Nevada Secretary of State and any other office in any jurisdiction, as
necessary to perfect the Collateral. From time to time, as reasonably
requested by Secured Party, the Debtor shall execute and deliver to Secured
Party such additional documents and instruments as may be necessary to
perfect and maintain Secured Party's security interest in the Collateral.
(b) Upon termination of the security interest provided for herein,
Secured Party shall promptly execute and deliver to the Debtor any and all
documents (including a termination statement in a form suitable for filing
under the Uniform Commercial Code of the State of Nevada) which the Debtor
may deem to be necessary or appropriate in order to adequately evidence the
termination of such security interest.
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11. Severability. If any provision of this Agreement is determined to be
invalid or unenforceable, all of the other provisions of this Agreement shall
nevertheless remain in full force and effect.
12. Notices. All notices, requests and other communications required or
permitted under this Agreement shall be in writing and may be delivered
personally or sent by first class mail, postage prepaid and addressed as
follows:
To the Debtor: Globus Wireless, Ltd.
0000 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
To the Secured Party: Aztec Components, Inc.
00 Xxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Any notice, request or other communication under this Agreement shall be
effective when received by the addressee, but if sent by registered or certified
mail postage prepaid and addressed as provided above, it shall be effective
exactly five (5) business days after deposit in the United States Mail anywhere
in the United States. The parties may change their addresses as listed above by
giving notice of the new address to the other party in conformity with this
Section.
13. Binding Upon Successors. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the parties.
14. Entire Agreement. This Agreement, together with the Note, the Sale
Agreement and any related documents dated of even date herewith and any
financing statement executed in connection with this Agreement, is intended by
the parties as the final, complete and exclusive expression of the terms and
conditions of their agreement, and supersedes all prior agreements and
representations.
15. Captions. The captions accompanying each Section of this Agreement are
for convenience only and shall not be deemed part of the context of this
Agreement.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
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17. Counterparts. This Agreement may be executed in counterparts, including
electronically transmitted counterparts, each of which shall be deemed to be an
original and shall be binding on any person who has signed it.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
"SECURED PARTY" "DEBTOR"
AZTEC COMPONENTS, INC. GLOBUS WIRELESS, LTD.
By: By:
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Xxxxxx Xxxxxx, Chief Executive
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