GUARANTEE AND SECURITY AGREEMENT DATED SEPTEMBER 30, 2008
EXHIBIT 10.4
DATED SEPTEMBER 30, 2008
In
consideration of the loans evidenced by the promissory notes of V2K
INTERNATIONAL, INC., a Colorado corporation (the “Obligor”), dated
September 30, 2008, payable to the order of XXXXXX X. XXXXXXXXX, X.X.
XXXXXXXXXXX, and XXXXXX X. XXXXX (the “Beneficiaries”), in
the aggregate principal amount of Seven Hundred Thirty-One Thousand Four Hundred
Fifty-Three and no/100 United States dollars (U.S.$731,453.00),
bearing interest at the rate of 12% per annum and payable on June 30, 2009 (the
“Notes”, which
term will include any and all amendments thereto and substitutions therefor
hereafter made and regardless of whether they are made with or without the
approval of the Guarantor defined below), and in order to induce the
Beneficiaries to make the loans evidenced by the Notes, V2K TECHNOLOGY, INC., a
Colorado corporation (“Guarantor”) hereby
unconditionally and irrevocably guarantees payment when due of any and all
amounts owing under the Notes. The Guarantor further agrees, with
respect to this guarantee:
1. The
obligations of the Guarantor shall not be impaired, diminished or discharged, in
whole or in part, by any extension of time granted by any holder of the Notes,
by any course of dealing between any holder of the Notes and the Obligor, by the
unenforceability of the Notes, in whole or in part, for any reason whatsoever,
by the release of any guarantor or other obligor or any collateral, or by any
other act, omission, event or circumstance which might operate to discharge a
guarantor in whole or in part or which might operate as a defense, in whole or
in part, to any obligation of a guarantor or which might invalidate, in whole or
in part, a guarantee.
2. The
Guarantor agrees to pay on demand all expenses of collecting and enforcing this
guarantee including, without limitation, expenses and fees of legal counsel,
court costs and the cost of appellate proceedings.
3. The
Guarantor waives
presentment for payment, demand, protest and notice of protest and of
non-payment.
4. This
is a guarantee of payment and not of collection. The holders of the Notes shall
not be required to resort to or pursue any of their rights or remedies under or
with respect to any other agreement or any other collateral before pursuing any
of their rights or remedies under this guarantee. The holders of the Notes may
pursue their rights and remedies in such order as they determine, and the
exercise by a holder of a Note of any right or remedy will not preclude an
exercise of any other right or remedy.
5. The
failure or delay by the holders of the Notes in exercising any of their rights
hereunder in any instance shall not constitute a waiver thereof in that or any
other instance. The holders of the Notes may not waive any of their rights
except by an instrument in writing signed by them.
6. This
guarantee may not be amended without the written approval of all of the holders
of the Notes.
7. This
guarantee will inure to the benefit of the holders of the Notes.
To secure
payment and performance of its obligations under this Agreement, the Guarantor
hereby transfers, assigns and pledges to the Beneficiaries and grants the
Beneficiaries a security interest in all of the following (collectively called
the “Collateral”):
The
“Décor Creator” software for which a patent application was filed, Serial
#11/030445, under the title, “Method and System for Sale of Residential and
Commercial Décor Products,” and the proceeds from the foregoing including,
without limitation, proceeds from any insurance insuring the same against risk
of loss or non-payment.
Upon (i)
failure by the Guarantor to perform any of its obligations or covenants under
this Agreement, then the Beneficiaries may, without notice, take such action as
it deems advisable with respect to the Collateral, including selling the
Collateral at public or private sale on such terms as they deem appropriate. At
any such sale the Beneficiaries may be the purchaser. The Beneficiaries will
give the Guarantor at least ten (10) days’ notice of any such
sale. The receipts and other proceeds from the Collateral will be
applied as follows: first, to the satisfaction of
all obligations of the Guarantor to the Beneficiaries under this Agreement in
such order as the Beneficiaries determine; and then, any balance to the
Guarantor.
The
Guarantor hereby makes the following representations and warranties for the
benefit of the Beneficiaries:
(a) it
is duly incorporated and validly existing under the laws of Colorado; it is duly
qualified to conduct business in the State of Colorado; and it has the corporate
power and authority to own its property and assets and to carry on its business
as it is now being conducted;
(b) it
has the corporate power and authority to execute, deliver and carry out the
terms and provisions of this Agreement, and it has taken all necessary corporate
action to authorize the execution, delivery and performance of this Agreement;
this Agreement constitutes the legally binding obligations of the Guarantor and
are enforceable against the Guarantor in accordance with its respective
terms;
(c) neither
the execution nor the delivery of this Agreement nor the transactions
contemplated hereby or thereby, nor compliance with the terms and conditions
hereof or thereof will:
(i) contravene
(A) any provision of the Articles of Incorporation or bylaws of the Guarantor,
or (B) any provision of any law, statute, decree, rule or regulation as to which
the Guarantor or any of its property is bound, or (C) any judgment, decree,
franchise, order or permit applicable to the Guarantor or any of its
property;
(ii) conflict
with, or result in any breach of any terms, covenants, conditions or provisions
of, or constitute a default (with or without the giving of notice or passage of
time or both) under or pursuant to the terms of any other agreement or
instrument to which the Guarantor is a party or by which it is bound;
or
(iii) result
in the creation or imposition of any lien, security interest, charge or
encumbrance upon any of the property or assets of the Guarantor;
(d) no
authorization, consent or approval of, or exemption by, any governmental,
judicial or public body or authority is required to authorize or is required in
connection with the execution, delivery and performance by the Guarantor of this
Agreement;
(e) the
Guarantor is not in default and would not with the giving of notice or passage
of time or both be in default under any agreement to which it is a party or by
which it or any of its property may be bound; and no litigation, arbitration or
administrative proceeding is currently pending or threatened which might have an
adverse effect on the business, assets or financial condition of the
Guarantor;
(f) there
is no order, writ, injunction or decree of any court, government or governmental
agency affecting the Guarantor or any of its businesses, assets or interests;
and
(g) there
are no claims, security interests, options, rights or other privileges
outstanding with respect to any of the Collateral or any of Guarantor’s other
assets.
The
Guarantor will take or cause to be taken such action and execute and deliver or
cause to be executed and delivered such other documents as the Beneficiaries may
request: (i) in connection with this Agreement and the Collateral, and (ii) to
perfect and to maintain the perfection of the Beneficiaries’ security interest
in the Collateral, including, without limitation, delivering the Collateral to
the Beneficiaries and executing and filing financing and other statements under
the Uniform Commercial Code in effect in any jurisdiction; and the Guarantor
hereby authorizes the Beneficiaries to sign and file any such statement on its
behalf or file any such statement without its signature.
The
Beneficiaries agree that any payments made by Guarantor or any proceeds received
as a result of enforcement of their rights under this Agreement shall be applied
to the Notes held by Beneficiaries pro rata in proportion to the amounts
outstanding under their respective Notes.
This
Agreement shall be governed by and construed in accordance with the law of the
State of Colorado.
All
notices, requests, demands and other communications must be in writing and may
be delivered personally or sent by mail, courier, fax, or other written means of
communication addressed to the Guarantor or the Beneficiaries, as the case may
be, at the addresses set forth below, or to the fax numbers set forth below, or
to such other address or fax number as to which notice is given:
If to the
Guarantor:
V2K
Technology, Inc.
00000
Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxx
Xxxxx
Fax: (000)
000-0000
If to the
Beneficiaries:
|
Xxxxxx
X. Xxxxxxxxx
0000
X. Xxxx Xxxx
Xxxxxx,
Xxxxxxxx 00000
|
X.X.
Xxxxxxxxxxx
000
X. 00xx Xxxxxx
Xxxxxxxxxx,
XX 00000
|
Xxxxxx
X. Xxxxx
0000
Xxxxx Xxxxxx
Xxxxxx,
XX 00000
|
IN
WITNESS WHEREOF, the Beneficiaries and the Guarantor have executed this
Agreement as of the day and year first above written.
| "Guarantor" | "Beneficiaries" | |||
| V2K TECHNOLOGY, INC. | ||||
|
/s/
Xxxxxx Xxxxx
|
/s/
Xxxxxx X. Xxxxxxxxx
|
|||
|
Name:
Xxxxxx Xxxxx
|
Xxxxxx
X. Xxxxxxxxx
|
|||
|
Title:
Executive VP & COO
|
|
|||
| /s/ X.X. Xxxxxxxxxxx | ||||
| X.X. Xxxxxxxxxxx | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
