EXHIBIT 10.47
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DEBTOR NAME AND ADDRESS SECURED PARTY NAME AND ADDRESS
HEI, INC. COMMERCE FINANCIAL GROUP, INC.
1495 STEIGER LAKE LANE 7650 EDINBOROUGH WAY, STE 160
VICTORIA, MN 55386 EDINA, MN 55435
41-0944876
Type: [ ] individual [ ] partnership [X] corporation [ ]
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State of organization/registration (if applicable) MN
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[ ] If checked, refer to addendum for additional Debtors and signatures.
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COMMERCIAL SECURITY AGREEMENT
The date of this Commercial Security Agreement (Agreement) is 10-28-2003.
SECURED DEBTS. This Agreement will secure all sums advanced by Secured Party
under the terms of this Agreement and the payment and performance of the
following described Secured Debts that (check one) [X] Debtor [ ]
(Borrower) owes to Secured Party:
[ ] Specific Debts. The following debts and all extensions, renewals,
refinancing, modifications, and replacements (describe):
[X] All Debts. All present and future debts, even if this Agreement is not
referenced, the debts are also secured by other collateral, or the
future debt is unrelated to or of a different type than the current
debt. Nothing in this Agreement is a commitment to make future loans or
advances.
SECURITY INTEREST. To secure the payment and performance of the Secured Debts,
Debtor gives Secured Party a security interest in all of the Property
described in this Agreement that Debtor owns or has sufficient rights in
which to transfer an interest, now or in the future, wherever the Property
is or will be located, and all proceeds and products of the Property.
"Property" includes all parts, accessories, repairs, replacements,
improvements, and accessions to the Property; any original evidence of
title or ownership; and all obligations that support the payment or
performance of the Property. "Proceeds" includes anything acquired upon the
sale, lease, license, exchange, or other disposition of the Property; any
rights and claims arising from the Property; and any collections and
distributions on account of the Property. This Agreement remains in effect
until terminated in writing, even if the Secured Debts are paid and Secured
Party is no longer obligated to advance funds to Debtor or Borrower.
PROPERTY DESCRIPTION. The Property is described as follows:
[ ] ACCOUNTS AND OTHER RIGHTS TO PAYMENT: All rights to payment, whether or
not earned by performance, including, but not limited to, payment for
property or services sold, leased, rented, licensed, or assigned. This
includes any rights and interests (including all liens) which Debtor
may have by law or agreement against any account debtor or obligor of
Debtor.
[ ] INVENTORY: All inventory held for ultimate sale or lease, or which has
been or will be supplied under contracts of service, or which are raw
materials, work in process, or materials used or consumed in Debtor's
business.
[ ] EQUIPMENT: All equipment including, but not limited to, machinery,
vehicles, furniture, fixtures, manufacturing equipment, farm machinery
and equipment, shop equipment, office and record keeping equipment,
parts, and tools. The Property includes any equipment described in a
list or schedule Debtor gives to Secured Party, but such a list is not
necessary to create a valid security interest in all of Debtor's
equipment.
[ ] INSTRUMENTS AND CHATTEL PAPER: All instruments, including negotiable
instruments and promissory notes and any other writings or records that
evidence the right to payment of a monetary obligation, and tangible
and electronic chattel paper.
[ ] GENERAL INTANGIBLES: All general intangibles including, but not limited
to, tax refunds, patents and applications for patents, copyrights,
trademarks, trade secrets, goodwill, trade names, customer lists,
permits and franchises, payment intangibles, computer programs and all
supporting information provided in Collection with a transaction
relating to computer programs, and the right to use Debtor's name.
[ ] DOCUMENTS: All documents of title including, but not limited to, bills
of lading, dock warrants and receipts, and warehouse receipts.
[ ] FARM PRODUCTS AND SUPPLIES: All farm products including, but not
limited to, all poultry and livestock and their young, along with their
produce, products, and replacements; all crops, annual or perennial,
and all products of the crops; and all feed, seed, fertilizer,
medicines, and other supplies used or produced in Debtor's farming
operations.
[ ] GOVERNMENT PAYMENTS AND PROGRAMS: All payments, accounts, general
intangibles, and benefits including, but not limited to, payments in
kind, deficiency payments, letters of entitlement, warehouse receipts,
storage payments, emergency assistance and diversion payments,
production flexibility contracts, and conservation reserve payments
under any preexisting, current, or future federal or state government
program.
[ ] INVESTMENT PROPERTY: All investment property including, but not limited
to, certificated securities, uncertificated securities, securities
entitlements, securities accounts, commodity contracts, commodity
accounts, and financial assets.
[ ] DEPOSIT ACCOUNTS: All deposit accounts including, but not limited to,
demand, time, savings, passbook, and similar accounts.
[X] SPECIFIC PROPERTY DESCRIPTION: The Property includes, but is not
limited by, the following (if required, provide real estate
description):
ALL EQUIPMENT OF DEBTOR WHETHER NOW OR HEREAFTER LOCATED AT HEI, INC.,
HIGH DENSITY INTERCONNECT DIVISION, 610 S. ROCKFORD DR, TEMPE, AZ
85281. DEBTOR REPRESENTS THAT THE EQUIPMENT LOCATED AT THE ABOVE
ADDRESS IS DESCRIBED ON ATTACHED EXHIBIT A.
USE OF PROPERTY. The Property will be used for [ ] personal [X]
business [ ] agricultural [ ] purposes.
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SIGNATURES. Debtor agrees to the terms on pages 1 and 2 of this Agreement and
acknowledges receipt of a copy of this Agreement.
DEBTOR SECURED PARTY
HEI, INC. COMMERCE FINANCIAL GROUP, INC.
/s/ Doug Nesbit /s/ James Senske
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DOUG NESBIT JAMES SENSKE
CHIEF FINANCIAL OFFICER PRESIDENT
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GENERAL PROVISIONS. Each Debtor's obligations under this Agreement are
independent of the obligations of any other Debtor. Secured Party may sue each
Debtor individually or together with any other Debtor. Secured Party may release
any part of the Property and Debtor will remain obligated under this Agreement.
The duties and benefits of this Agreement will bind the successors and assigns
of Debtor and Secured Party. No modification of this Agreement is effective
unless made in writing and signed by Debtor and Secured Party. Whenever used,
the plural includes the singular and the singular includes the plural. Time is
of the essence.
APPLICABLE LAW. This Agreement is governed by the laws of the state in which
Secured Party is located. In the event of a dispute, the exclusive forum, venue,
and place of jurisdiction will be the state in which Secured Party is located,
unless otherwise required by law. If any provision of this Agreement is
unenforceable by law, the unenforceable provision will be severed and the
remaining provisions will still be enforceable.
NAME AND LOCATION. Debtor's name indicated on page 1 is Debtor's exact legal
name. If Debtor is an individual, Debtor's address is Debtor's principal
residence. If Debtor is not an individual, Debtor's address is the location of
Debtor's chief executive offices or sole place of business. If Debtor is an
entity organized and registered under state law, Debtor has provided Debtor's
state of registration on page 1. Debtor will provide verification of
registration and location upon Secured Party's request. Debtor will provide
Secured Party with at least 30 days notice prior to any change in Debtor's name,
address, or state of organization or registration.
WARRANTIES AND REPRESENTATIONS. Debtor has the right, authority, and power to
enter into this Agreement. The execution and delivery of this Agreement will not
violate any agreement governing Debtor or Debtor's property, or to which Debtor
is a party. Debtor makes the following warranties and representations which
continue as long as this Agreement is in effect:
(1) Debtor is duly organized and validly existing in all
jurisdictions in which Debtor does business;
(2) the execution and performance of the terms of this Agreement
have been duly authorized, have received all necessary
governmental approval, and will not violate any provision of
law or order;
(3) other than previously disclosed to Secured Party, Debtor has
not changed Debtor's name or principal place of business
within the last 10 years and has not used any other trade or
fictitious name; and
(4) Debtor does not and will not use any other name without
Secured Party's prior written consent.
Debtor owns all of the Property, and Secured Party's claim to the Property is
ahead of the claims of any other creditor, except as otherwise agreed and
disclosed to Secured Party prior to any advance on tile Secured Debts. The
Property has not been used for any purpose that would violate any laws or
subject the Property to forfeiture or seizure.
DUTIES TOWARD PROPERTY. Debtor will protect the Property, and Secured Party's
interest against any competing claim. Except as otherwise agreed, Debtor will
keep the Property in Debtor's possession at the address indicated on page 1 of
this Agreement. Debtor will keep the Property in good repair and use the
Property only for purposes specified on page 1. Debtor will not use the Property
in violation of any law and will pay all taxes and assessments levied or
assessed against the Property. Secured Party has the right of reasonable access
to inspect the Property, including the right to require Debtor to assemble and
make the Property available to Secured Party. Debtor will immediately notify
Secured Party of any loss or damage to the Property. Debtor will prepare and
keep books, records, and accounts about the Property and Debtor's business, to
which Debtor will allow Secured Party reasonable access.
Debtor will not sell, offer to sell, license, lease, or otherwise
transfer or encumber the Property without Secured Party's prior written consent.
Any disposition of the Property will violate Secured Party's rights, unless the
Property is inventory sold in the ordinary course of business at fair market
value. If the Property includes chattel paper or instruments, either as original
collateral or as proceeds of the Property, Debtor will record Secured Party's
interest on the face of the chattel paper or instruments.
If the Property includes accounts, Debtor will not settle any account
for less than the full value, dispose of the accounts by assignment, or make any
material change in the terms of any account without Secured Party's prior
written consent. Debtor will collect all accounts in the ordinary course of
business, unless otherwise required by Secured Party. Debtor will keep the
proceeds of the accounts, and any goods returned to Debtor, in trust for Secured
Party and will not commingle the proceeds or returned goods with any of Debtor's
other property. Secured Party has the right to require Debtor to pay Secured
Party the full price on any returned items. Secured Party may require account
debtors to make payments under the accounts directly to Secured Party. Debtor
will deliver the accounts to Secured Party at Secured Party's request. Debtor
will give Secured Party all statements, reports, certificates, lists of account
debtors (showing names, addresses, and amounts owing), invoices applicable to
each account, and any other data pertaining to the accounts as Secured Party
requests.
If the Property includes farm products, Debtor will provide Secured
Party with a list of the buyers, commission merchants, and selling agents to or
through whom Debtor may sell the farm products. Debtor authorizes Secured Party
to notify any additional parties regarding Secured Party's interest in Debtor's
farm products, unless prohibited by law. Debtor agrees to plant, cultivate, and
harvest crops in due season. Debtor will be in default if any loan proceeds are
used for a purpose that will contribute to excessive erosion of highly erodible
land or to the conversion of wetland to produce or to make possible the
production of an agricultural commodity, further explained in 7 CPR Part 1940,
Subpart G, Exhibit M. If Debtor pledges the Property to Secured Party (delivers
the Property into the possession or control of Secured Party or a designated
third party), Debtor will, upon receipt, deliver any proceeds and products of
the Property to Secured Party. Debtor will provide Secured Party with any
notices, documents, financial statements, reports, and other information
relating to the Property Debtor receives as the owner of the Property.
PERFECTION OF SECURITY INTEREST. Debtor authorizes Secured Party to file a
financing statement covering the Property. Debtor will comply with, facilitate,
and otherwise assist Secured Party in connection with obtaining possession or
control over the Property for purposes of perfecting Secured Party's interest
under the Uniform Commercial Code.
INSURANCE. Debtor agrees to keep the Property insured against the risks
reasonably associated with the Property until the Property is released from this
Agreement. Debtor will maintain this insurance in the amounts Secured Party
reasonably requires. Debtor may choose the insurance company, subject to Secured
Party's approval, which will not be unreasonably withheld. Debtor will have the
insurance provider name Secured Party as loss payee on the insurance policy.
Debtor will give Secured Party and the insurance provider immediate notice of
any loss. Secured Party may apply the insurance proceeds toward the Secured
Debts. Secured Party may require additional security as a condition of
permitting any insurance proceeds to be used to repair, or replace the Property.
If Secured Party acquires the Property in damaged condition, Debtor's rights to
any insurance policies and proceeds will pass to Secured Party to the extent of
the Secured Debts. Debtor will immediately notify Secured Party of the
cancellation or termination of insurance. If Debtor fails to keep the Property
insured, or fails to provide Secured Party with proof of insurance, Secured
Party may obtain insurance to protect Secured Party's interest in the Property.
The insurance may include coverages not originally required of Debtor, may be
written by a company other than one Debtor would choose, and may be written at a
higher rate than Debtor could obtain if Debtor purchased the insurance.
AUTHORITY TO PERFORM. If Debtor fails to perform any of Debtor's duties under
this Agreement, Secured Party is authorized, without notice to Debtor, to
perform the duties or cause them to be performed. These authorizations include,
but are not limited to, permission to pay for the repair, maintenance, and
preservation of the Property and take any action to realize the value of the
Property. Secured Party's authority to perform for Debtor does not create an
obligation to perform, and Secured Party's failure to perform will not preclude
Secured Party from exercising any other rights under the law or this Agreement.
If Secured Party performs for Debtor, Secured Party will use reasonable
care. Reasonable care will not include any steps necessary to preserve rights
against prior parties or any duty to take action in connection with the
management of the Property.
If Secured Party comes into possession of the Property, Secured Party
will preserve and protect the Property to the extent required by law. Secured
Party's duty of care with respect to the Property will be satisfied if Secured
Party exercises reasonable care in the safekeeping of the Property or to the
selection of a third party in possession of the Property.
Secured Party may enforce the obligations of an account debtor or other
person obligated on the Property. Secured Party may exercise Debtor's rights
with respect to the account debtor's or other person's obligations to make
payment or otherwise render performance to Debtor, and enforce any security
interest that secures such obligations.
PURCHASE MONEY SECURITY INTEREST. If the Property includes items purchased with
the Secured Debts, the Property purchased with the Secured Debts will remain
subject to Secured Party's security interest until the Secured Debts are paid in
full. Payments on any non-purchase money loan also secured by this Agreement
will not be applied to the purchase money loan. Payments on the purchase money
loan will be applied first to the non-purchase money portion of the loan, if
any, and then to the purchase money portion in the order in which the purchase
money Property was acquired. If the purchase money Property was acquired at the
same time, payments will be applied in the order Secured Party selects. No
security interest will be terminated by application of this formula.
DEFAULT. Debtor will be in default if:
(1) Debtor (or Borrower, if not the same) fails to make a payment
in full when due;
(2) Debtor fails to perform any condition or keep any covenant on
this or any debt or agreement Debtor has with Secured Party;
(3) a default occurs under the terms of any instrument or
agreement evidencing or pertaining to the Secured Debts;
REMEDIES. After Debtor defaults, and after Secured Party gives any legally
required notice and opportunity to cure the default, Secured Party may at
Secured Party's option do any, one or more of the following:
(1) make all or any part of the Secured Debts immediately due and
accrue interest at the highest post-majority interest rate;
(2) require Debtor to gather the Property and make it available to
Secured Party in a reasonable fashion;
(3) enter upon Debtor's premises and take possession of all or any
part of Debtor's property for purposes of preserving the
Property or its value and use and operate Debtor's property to
protect Secured Party's interest, all without payment or
compensation to Debtor;
(4) use any remedy allowed by state or federal law, or provided in
any agreement evidencing or pertaining to the Secured Debts.
If Secured Party repossesses the Property or enforces the obligations
of an account debtor, Secured Party may keep or dispose of the Property as
provided by law. Secured Party will apply the proceeds of any collection or
disposition first to Secured Party's expenses of enforcement, which includes
reasonable attorneys' fees and legal expenses to the extent not prohibited by
law, and then to the Secured Debts. Debtor (or Borrower, if not the same) will
be liable for the deficiency, if any. By choosing anyone or more of these
remedies, Secured Party does not give up the right to use any other remedy.
Secured Party does not waive a default by not using a remedy.
WAIVER. Debtor waives, all claims for damages caused by Secured Party's acts or
omissions where Secured Party acts in good faith.
NOTICE AND ADDITIONAL DOCUMENTS. Where notice is required, Debtor agrees that 10
days prior written notice will be reasonable notice to Debtor under the Uniform
Commercial Code. Notice to one party is notice to all parties. Debtor agrees to
sign, deliver, and file any additional documents and certifications Secured
Party considers necessary to perfect, continue, or preserve Debtor's obligations
under this Agreement and to confirm Secured Party's lien status on the Property.