Exhibit 2.4
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT ("Agreement") dated as of December ___,
1998 is between C. FREDERICK WEHBA II, CHAD W. WEHBA, CHRISTIAN F. WEHBA, GFW
TRUST, CYLE F. WEHBA 1998 TRUST, AND TPF TRUST III (each, a "Grantor", and
collectively, "Grantors"), and TELEVIDEO, INC., a Delaware corporation ("Secured
Party").
WITNESSETH:
A. TVCA Holding, LLC, a Delaware limited liability company ("Debtor") is
the maker of that certain Promissory Note dated December __, 1998 in the
original principal amount of Two Million Seven Hundred Fifty Thousand Dollars
($2,750,000) made payable to Secured Party ("Note"). A true and correct copy of
the Note is attached hereto as Exhibit "A".
B. Grantors are all of the members of Debtor and are the owners of all of
the membership interests in Debtor ("Membership Interests").
C. Debtor is the sole member of TVCA, LLC, a Delaware limited liability
company ("Subsidiary"), and the holder of all membership interests in the
Subsidiary.
D. Grantors desire to pledge and assign their respective Membership
Interests to Secured Party and grant to Secured Party a first priority lien and
security interest in and to said Membership Interests to secure the payment of
the Note.
E. To evidence the pledge, assignment and grant of a security interest in
the Membership Interests to Secured Party, Grantors have agreed to execute this
Agreement and the financing statements in connection herewith.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Grantors and Secured
Party agree as follows:
1. COLLATERAL AND SECURITY INTEREST. Each Grantor hereby pledges and
assigns such Grantor's respective Membership Interest to Secured Party, together
with all income, profits, distributions, capital surplus, return of capital,
management rights, if any, or other tangible or intangible property related to
or derived from such Membership Interest, and grants to Secured Party a first
priority lien and security interest therein and such other rights and remedies
as may be granted to a secured party under the laws of the State of California
("Security Interest") in and to all of such Grantor's right, title and interest
in such Grantor's Membership Interest and all proceeds thereof ("Collateral").
2. SECURITY INTEREST. The Security Interest is a pledge and security
interest in and to the Collateral pursuant to the provisions of Article 9 of the
California Commercial Code. The Collateral secures the payment of the Note in
accordance with its terms. Grantors shall execute any and all documents,
instruments and financing statements as deemed necessary by Secured
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Party, acting reasonably, to effectuate this Agreement. Any certificates
representing the Membership Interests shall be delivered to and held by Secured
Party pursuant to this Agreement and shall be accompanied by duly executed
instruments of transfer or assignments in blank, all in form and substance
satisfactory to Secured Party.
3. IRREVOCABLE INSTRUCTIONS TO LENDER AND ESCROW AGENT. Grantors, who
hold all of the membership interests in Subsidiary, will cause Subsidiary to
irrevocably instruct Finova Realty Capital, Inc., a Delaware corporation
("FRC") to apply all payments of basic rent received from Secured Party under
that certain lease dated as of December ___, 1998 between Subsidiary, as
landlord, and Secured Party, as Tenant, in the following manner: (a) first,
to FRC's mortgage loan on the leased premises, and (b) then to an escrow
account ("Escrow Account") at Wilmington Trust Company, a Delaware banking
corporation ("Escrow Agent"), in Subsidiary's name. A true and correct copy
of such irrevocable instructions to FRC is attached and incorporated hereto
as Exhibit "B." Grantors will further cause Subsidiary to irrevocably
instruct Escrow Agent to apply all Escrow Account proceeds to monthly
payments due Secured Party under the Note. Any excess remaining in the
account after all monthly Note payments have been made in full may be
released as directed by Subsidiary. A true and correct copy of such
irrevocable instructions to Escrow Agent is attached and incorporated hereto
as Exhibit "C."
4. REPRESENTATIONS AND WARRANTIES. Grantors represent and warrant that
(a) the Membership Interests represent all of the Grantors' respective right,
title and interest in the Debtor; (b) this Agreement constitutes the valid and
binding obligation of Grantors, enforceable in accordance with its terms; (c)
Grantors will receive a material direct financial benefit as a result of Secured
Party's acceptance of the Note for the obligation evidenced therein and Grantors
have received good and sufficient consideration for the granting of the Security
Interest; (d) the execution, delivery and performance of this Agreement by
Grantors and does not constitute a breach of any agreement of Grantors as
members of the Debtor; (e) the Collateral and Grantors' principal place of
business are located at 1900 Avenue of the Stars, Suite 2840, Los Angeles,
California 90067; (f) Grantors are the lawful owners of the Membership Interests
free and clear of any pledge, assignment, lien or security interest (other than
those in favor of Secured Party), and Grantors shall defend the same against the
claims and demands of all persons; and (g) Grantors have not signed any
financing statement, pledge or security agreement which is currently in effect
and covers any of the Collateral. Grantors covenant that Grantors will not do
any of the following without the prior written consent of Secured Party; (w)
pledge, assign, grant or otherwise transfer the Membership Interests in any
manner whatsoever, by operation of law or otherwise; (x) cause or permit the
Debtor to issue additional membership interests in Debtor; (y) cause or permit
the Subsidiary to amend the Subsidiary's Operating Agreement in a manner that
will impair the Debtor's rights as a Class B member of the Subsidiary; or (z)
cause or permit the Subsidiary to issue additional Class B membership interests
in the Subsidiary.
5. DEFAULT AND REMEDIES UPON DEFAULT.
(a) Any one or more of the following shall be deemed an "Event of
Default" under this Agreement: (i) a default occurs under the Note; (ii)
Grantors default under this Agreement; (iii) the Debtor distributes any of its
assets by reason of sale, reorganization, liquidation or dissolution without the
written consent of Secured Party; (iv) the Debtor sells a substantial portion or
a bulk sale of its assets without the written consent of Secured Party; (v) an
execution is issued upon the Collateral or any of the assets of the Debtor, (vi)
a receiver is
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appointed to take charge of any of the Grantors' or the Debtor's property; (vii)
Debtor ceases to exist or becomes a party to any merger or consolidation without
the written consent of Secured Party; or (viii) any of the representations or
warranties made herein are, in any manner, false or misleading in any material
respect as and when made.
(b) Upon the occurrence of an Event of Default, Secured Party shall be
entitled to exercise all of the rights and remedies available to a secured party
under the California Commercial Code and all of the rights and remedies
available to it under the Note, including, without limitation, the right (i)
without notice, demand or legal process to vote the Membership Interests and
receive any distributions of cash or other property made by the Debtor and
otherwise take any action permitted to be taken as a result of owning the
Membership Interest, (ii) to enter upon the premises of Debtor and take
possession of the Collateral and the books and records of Debtor relating to the
Collateral and the Debtor, (iii) to require Debtor to make the Collateral
available to Secured Party and/or (iv) to sell, transfer, endorse, assign and/or
deliver the whole or, from time to time, any part of the Collateral at public or
private sale, for cash, upon credit or for other property, for immediate or
future delivery, for such prices and on such terms as Secured Party in its sole
discretion shall deem appropriate.
(c) Secured Party shall give Grantors written notice, within the
meaning of Article 9 of the California Commercial Code, of Secured Party's
intention to sell the Collateral at a public or private sale. Secured Party
shall not be obligated to sell the Collateral even if notice of the sale of the
Collateral has been given. At any sale made pursuant to this Section 4, Secured
Party may bid for or purchase, free from any right of redemption after any such
sale, stay and appraisal on the part of Grantors (to the extent permitted by
law), all said rights being hereby waived and released to the extent permitted
by law, all or any portion of the Collateral offered for sale and may make
payment on account thereof by using the obligations under the Note, or any
portion thereof, then due and payable as a credit against the purchase price,
and Secured Party may, upon compliance with the terms of the sale, hold, retain
and dispose of the Collateral without further accountability to Grantors
therefor.
(d) Upon the occurrence of an Event of Default, or in the event that
a petition is filed by or against Grantors or the Debtor under any provision of
Title II of the United States Code (the "Bankruptcy Code"), or in the event
there is any entry of an order for relief respecting either Grantors or the
Debtor, or in the event of the appointment of a receiver, trustee or custodian
for either Grantors or the Debtor, or in the event either Grantors or the Debtor
becomes a debtor in possession, which actions in and of themselves do not
constitute a default pursuant to the provisions of the Bankruptcy Code,
Grantor's successors in interest, or any other party succeeding to Grantor's
interest, shall not under any circumstances sell or in any way dispose of the
Collateral without the prior written consent of Secured Party which may demand
(i) the immediate return of the Collateral in the possession of Grantors or
their successors in interest or (ii) an immediate cash payment of all of the
unpaid obligations under the Note. The option to accept the return of the
Collateral and proceeds shall in no way relieve Debtor or its successors in
interest of any deficiency respecting the obligations under the Note. Grantors
agree to pay to Secured Party and be liable for all reasonable costs, expenses,
charges and attorneys' fees (if and to the extent permitted by law) incurred by
Secured Party to enforce this Agreement.
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6. CUMULATIVE REMEDIES; POWER OF ATTORNEY. All of Secured Party's rights
and remedies with respect to the Collateral, whether established pursuant to
this Agreement, the Note or at law or in equity, shall be cumulative and may be
exercised singularly or concurrently. Grantors hereby authorize Secured Party to
make, constitute and appoint any officer or agent of Secured Party as Grantor's
true and lawful attorney-in-fact, with power, upon the occurrence of an Event of
Default, to (a) endorse Grantor's name on all documents, papers and instruments
necessary or desirable for Secured Party to vote the Membership Interests or use
the Collateral, (b) take any other actions with respect to the Collateral that
Secured Party deems appropriate, (c) assign, pledge, convey or otherwise
transfer title to or dispose of any of the Collateral, and (d) execute and file
appropriate UCC financing statements with respect to the Membership Interests,
and renewals of such financing statements. This power of attorney is coupled
with an interest and shall be irrevocable unless and until the obligations under
the Note have been paid in full.
7. APPLICABLE LAWS. This Agreement shall be governed by the laws of the
State of California. Any provision in this Agreement prohibited, in whole or in
part, by any applicable law shall be enforced to the fullest extent permitted by
applicable law, without modifying or affecting the remaining provisions of this
Agreement; provided, however, that if the conflicting provisions of any
applicable law may be waived, they are hereby waived by Grantors to the fullest
extent permitted by applicable law. Except as otherwise provided herein,
Grantors waives (a) all statutory or other requirements for any notice of any
kind, (b) requirements as to the time, place and terms of any sale of the
Collateral, (c) requirements with respect to the enforcement of Secured Party's
rights and/or remedies hereunder and (d) all rights of redemption respecting the
Collateral or otherwise.
8. TERM OF AGREEMENT. This Agreement shall become effective upon the date
hereof and shall continue in full force and effect until all of the obligations
under the Note are fully paid, satisfied and performed, in which event Secured
Party shall, upon request of Grantors, return the certificates, if any,
evidencing the Membership Interests and execute and deliver termination
statements to Grantors for filing in each office in which a financing statement
has been filed by Secured Party with respect to the Security Interest or as may
be necessary or required to release the Security Interest, all at the cost and
expense of Grantors.
9. NOTICES. Any notices pursuant to this Agreement shall be given in
writing and delivered personally or sent by United States certified mail, return
receipt requested, with postage prepaid, and such notices shall be effective on
the date personally delivered or, if mailed, two (2) postal delivery days after
deposit in the United States mail addressed to Grantors at 1900 Avenue of the
Stars, Suite 2840, Los Angeles, California 90067, and to Secured Party at
Televideo, Inc., 2345 Harris Way, San Jose, CA 95131. Each party hereto may
change such party's notice address by providing written notice to the other in
compliance with this Section 8.
10. MISCELLANEOUS. This Agreement shall be binding upon Grantors, their
respective successors and assigns, and shall inure to the benefit of Secured
Party, its successors and assigns. Any amendments to this Agreement must be in
writing and executed by authorized representatives of each party hereto. Unless
the context of this Agreement otherwise requires, references to the plural
include the singular and the singular the plural.
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IN WITNESS WHEREOF, Grantors and Secured Party have caused this Agreement
to be executed as of the date set forth above.
GRANTORS:
/s/ Chad W. Wehba
-----------------------------------------------
Chad W. Wehba
/s/ C. Frederick Wehba II
-----------------------------------------------
C. Frederick Wehba II
/s/ Christian F. Wehba
-----------------------------------------------
Christian F. Wehba
GFW TRUST
By: /s/ C. Frederick Wehba II, Trustee
--------------------------------------------
C. Frederick Wehba II, Trustee
CYLE F. WEHBA 1998 TRUST
By: /s/ C. Frederick Wehba II, Trustee
--------------------------------------------
C. Frederick Wehba II, Trustee
TPF TRUST III
By:
--------------------------------------------
Robert P. O'Leary, Trustee
SECURED PARTY:
TELEVIDEO, Inc.,
a Delaware corporation
By: /s/ K. Philip Hwang, CEO
--------------------------------------------
K. Philip Hwang, CEO
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EXHIBIT "A"
PROMISSORY NOTE
$2,750,000.00 December __, 1998
1. For value received, the undersigned, TVCA HOLDING LLC, a Delaware limited
liability company ("Maker"), promises to pay to the order of TELEVIDEO,
INC., a Delaware corporation ("Payee"), or order, at 2345 Harris Way, San
Jose, CA 95131, or other address directed by Payee, the principal sum of
Two Million Seven Hundred Fifty Thousand Dollars ($2,750,000) with interest
at the rate of seven and one-quarter percent (7.25%) per annum from the
date hereof with monthly payments based on an amortization period of twenty
(20) years. If not earlier paid in full, any unpaid principal and all
accrued interest shall be due and payable on December 1, 2013.
2. Principal and accrued interest shall be payable in equal monthly
installments of Twenty One Thousand Seven Hundred Thirty Five and 34/100
Dollars ($21,735.34) each on the first day of each month commencing on
January 1, 1999. On December 1, 2013, the outstanding principal balance and
any and all accrued interest then due and payable shall be paid in full to
Payee by Maker.
3. Both principal and interest shall be payable to Payee, or at any other
place hereafter designated in writing by the holder(s) and delivered to
Maker. All sums shall be deemed paid upon receipt of same by the holder(s)
hereof.
4. This Promissory Note is secured by that certain Pledge and Security
Agreement ("Pledge Agreement") of even date herewith executed by all of the
members of Maker and that certain Escrow Agreement ("Escrow Agreement") of
even date herewith executed by Maker, Payee, and Wilmington Trust Company,
a Delaware banking corporation.
5. Payments on this Promissory Note shall be applied first to payment of any
late charges, second to payment of accrued interest and third to the
outstanding principal.
6. Maker shall have the right to prepay all or any portion of the indebtedness
evidenced by this Promissory Note at any time without premium or penalty.
7. Subject in all events to the provisions of Section 8 hereof, (i) if
Maker fails to pay in full any monthly installment of principal and
interest or any other sums required to be paid pursuant to this
Promissory Note in the manner set forth in the escrow agreement, within
ten (10) days after the due date, or (ii) if Maker defaults in the
performance or observance of any covenant or condition contained in the
Pledge Agreement and the Escrow Agreement and such default is not cured
within thirty (30) days after receipt of written notice of such default,
or (iii) if, pursuant to that certain lease ("Lease") dated as of
December __, 1998 between TVCA, LLC, a Delaware limited liability
company, as landlord, and Payee, as tenant, with respect to certain real
property and improvements located in San Jose, CA, particularly
described in the Lease ("Premises"), Payee is
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required to purchase the Premises from TVCA, LLC in accordance with the
terms of the Lease, then and in any of such events, the holder of this
Promissory Note may, without further notice, immediately declare to be due
and payable the entire outstanding indebtedness evidenced by this
Promissory Note.
8. Notwithstanding any provisions of this Promissory Note to the contrary, the
performance of Maker's obligations pursuant to this Promissory Note are
conditioned upon Payee, as tenant under the Lease, timely tendering to
TVCA, LLC all rent, charges and monetary obligations under the Lease
("Lease Payments") as and when the same become due and payable in
accordance with the terms of the Lease. In the event that Payee is late in
tendering any Lease Payment to TVCA, LLC, then the applicable due date for
Maker's performance of any of Maker's obligations under this Promissory
Note shall automatically be extended for the same period of time that Payee
was delinquent in the payment of such Lease Payment. Further, in the event
that the Lease is terminated pursuant to Section 10 of the Lease due to a
default on the part of Payee as tenant thereunder, then, in such event,
this Promissory Note shall be deemed to be immediately satisfied in full
and Maker shall have no further obligation to Payee hereunder.
9. This Promissory Note shall be binding Maker and its successors and assigns.
TVCA HOLDING LLC,
a Delaware limited liability company
By:
-----------------------------------------
C. Frederick Wehba II, Manager
EXHIBIT "B"
LENDER INSTRUCTIONS
TVCA, LLC,
a Delaware limited liability company
1900 Avenue of the Stars, Suite 2840
Los Angeles, CA 90067
C. FREDERICK WEHBA II
PRESIDENT
Via Facsimile and UPS Next Day Air
December __ 1998
Finova Realty Capital, Inc.
19900 MacArthur Boulevard
Suite 1100
Irvine, CA 92612
RE: 2345 HARRIS WAY, SAN JOSE, CA
Ladies and Gentlemen:
Finova Realty Capital, Inc. is hereby irrevocably instructed to apply all
monies received from or on behalf of TeleVideo, Inc., a Delaware corporation
("TeleVideo"), in respect of Basic Rent due under that certain Lease and
Agreement of Lease dated as of December __, 1998 between TeleVideo, as Tenant,
and TVCA, LLC, a Delaware limited liability company ("TVCA"), as Landlord, in
the following and in no other manner:
(1) First, to the monthly loan amount due from TVCA under the Promissory
Note, the Real Estate Tax Escrow Fund, the Tenant Improvement and Leasing
Commissions Reserve, and the Replacement Reserve dated December __, 1998 by and
between TVCA, as Borrower, and Finova Realty Capital, Inc., as Lender, executed
in connection with TVCA's acquisition of the above referenced property.
(2) Next, to the escrow account established in TVCA's name at Wilmington
Trust Company, a Delaware banking corporation, 1100 N. Market Street,
Wilmington, DE 19890 (ABA No. 031100092, Account No. TVCA Escrow Account
46912-0).
Sincerely,
C. Frederick Wehba II
President, TVCA, Inc.
Manager
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ACCEPTED AND AGREED:
FINOVA REALTY CAPITAL, INC.
By:
-----------------------------
Name/Title
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EXHIBIT "C"
ESCROW INSTRUCTIONS
THIS AGREEMENT is made this 21st day of December 1998, by and among, TVCA,
LLC a Delaware limited liability company as "Purchaser," TELEVIDEO, INC., a
Delaware corporation, as "Seller", and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as "Escrow Agent".
WHEREAS, Purchaser is acquiring certain real property from Seller located
at 2345 Harris Way, San Jose, California (the "Property"); and
WHEREAS, Purchaser has delivered to Seller a promissory note ("Note") in
the amount of Two Million Seven Hundred Fifty Thousand Dollars ($2,750,000) in
connection with its acquisition of the Property, a true and correct copy of
which is attached hereto as Exhibit "1."
WHEREAS, the monthly amount due Seller on the Note is Twenty One Thousand
Seven Hundred Thirty Five and 34/100 Dollars ($21,735.34).
NOW, THEREFORE, in consideration of the premises, and further consideration
of the covenants set forth hereafter, it is hereby agreed mutually as follows:
I. DESIGNATION AS ESCROW AGENT.
Subject to the terms and conditions hereof, Purchaser and Seller hereby
appoint Wilmington Trust Company as Escrow Agent and Wilmington Trust Company
hereby accepts such appointment.
II. DEPOSIT OF ESCROW FUNDS.
(a) Upon execution of this Escrow Agreement, Purchaser shall deposit the
sum of One Hundred Dollars ($100.00) into an account (the "Escrow Account")
established with Escrow Agent. In addition to such initial deposit, Escrow Agent
shall receive a monthly amount from Finova Realty Capital, Inc., a Delaware
corporation ("FRC") for immediate deposit into the Escrow Account. At all times
from and effect the date of this Agreement, Purchaser shall be the sole owner of
the Escrow Account.
(b) Escrow Agent will hold the initial deposit and all subsequent deposits
from FRC in the Escrow Account, together with all investments thereof and all
interest accumulated thereon and proceeds therefrom, in escrow upon the terms
and conditions set forth in this Escrow Agreement and shall not disburse funds
from the Escrow Account except as provided herein.
(c) Unless otherwise directed by Purchaser, Escrow Agent shall invest the
Escrow Account solely in securities issued or guaranteed by the United States or
an agency thereof, or in securities of mutual funds the assets of which are
invested in securities issued or guaranteed by the United States or an agency
thereof, or in repurchase agreements involving securities issued or
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guaranteed by the United States or an agency thereof, or in certificates of
deposit issued by banks.
III. DISBURSEMENT OF ESCROW ACCOUNT. Escrow Agent will make the following
disbursements to Purchaser and Seller on the first day of each month.
(a) To Seller, the sum of Twenty One Thousand Seven Hundred Thirty Five
and 34/100 Dollars ($21,735.34).
(b) To Purchaser, the amount remaining in the Escrow Account after the
payment to Seller as set forth above; provided, however, that Escrow Agent may
retain a sufficient amount in the Escrow Account in order to keep the account
open.
IV. AUTHORITY OF ESCROW AGENT AND LIMITATION OF LIABILITY.
(a) In acting hereunder, Escrow Agent shall have only such duties as are
specified herein and no implied duties shall be read into this Agreement, and
Escrow Agent shall not be liable for any act done or omitted to be done, by it
in the absence of its gross negligence or willful misconduct.
(b) Escrow Agent may act in reliance upon any writing or instrument or
signature which it, in good faith, believes to be genuine, and may assume the
validity and accuracy of any statement or assertion contained in such a writing
or instrument and may assume that any person purporting to give any writing,
notice, advice or instruction in connection with the provisions hereof has been
duly authorized so to do.
(c) Escrow Agent shall be entitled to consult with legal counsel in the
event that a question or dispute arises with regard to the construction of any
of the provisions hereof, and shall incur no liability and shall be fully
protected in acting in accordance with the advice or opinion of such counsel.
(d) Escrow Agent shall not be required to use its own funds in the
performance of any of its obligations or duties or the exercise of any of its
rights or powers, and shall not be required to take any action which, in Escrow
Agent's sole and absolute judgment, could involve it in expense or liability
unless furnished with security and indemnity which it deems, in its sole and
absolute discretion, to be satisfactory.
(e) Seller shall pay to Escrow Agent compensation for its services
hereunder to be determined from time to time by the application of the current
rates than charged by Escrow Agent for accounts of similar size and character,
with a minimum rate of Twenty Five Hundred Dollars ($2,500.00) per annum. Seller
shall also pay to Escrow Agent an initial set up fee of Three Thousand Dollars
($3,000.00). In the event Escrow Agent renders any extraordinary services in
connection with the escrow account at the request of the parties, Escrow Agent
shall be entitled to additional compensation therefor. Escrow Agent shall have a
first lien against the Escrow Account to secure the obligations or Purchaser and
Seller hereunder. The terms of this paragraph shall survive termination of this
Agreement.
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(f) Purchaser and Seller hereby agree, jointly and severally, to indemnify
Escrow Agent and hold it harmless from any and against all liabilities, loses,
actions, suits or proceedings at law or in equity, and any other expenses, fees
or charges of any character or nature, including, without limitation, attorney's
fees and expenses, which Escrow Agent may incur or with which it may be
threatened by reason of its acting as Escrow Agent under this Agreement or
arising out of the existence of the Escrow Account, except to the extent the
same shall be caused by Escrow Agent's gross negligence or willful misconduct.
Escrow Agent shall have a first lien against the Escrow Account to secure the
obligations of the parties hereunder. The terms of this paragraph shall survive
termination of this Agreement.
(g) In the event Escrow Agent receives conflicting instructions hereunder,
Escrow Agent shall be fully protected in refraining from acting until such
conflict is resolved to the satisfaction of Escrow Agent. In addition, Escrow
Agent shall have the right to institute a bill of interpleader in any court of
competent jurisdiction to determine the rights of the parties, and the parties
shall pay all costs, expenses and disbursements in connection therewith,
including attorney's fees. For purposes of this Escrow Agreement, the parties
hereto agree to submit to the jurisdiction of the courts of the State of
Delaware.
(h) Escrow Agent may resign as Escrow Agent, and, upon its resignation,
shall thereupon be discharged from any and shall further duties and obligations
under this Agreement by giving notice in writing of such resignation to
Purchaser and Seller, which notice shall specify a date upon which such
resignation shall take effect. Upon the resignation of Escrow Agent, Purchaser
and Seller shall, within sixty (60) business days after receiving the foregoing
notice from Escrow Agent, designate a substitute escrow agent (the "Substitute
Escrow Agent"), which Substitute Escrow Agent shall, upon its designation and
notice of such designation to Escrow Agent, succeed to all of the rights, duties
and obligations of Escrow Agent hereunder.
IV. NOTICES.
Except as otherwise provided herein, any notices, instruction or instrument
to be delivered hereunder shall be in writing and shall be sent by certified or
registered mail, postage prepaid, return receipt requested, or sent by
facsimile, nationally-recognized overnight courier addressed to the parties or
delivered by hand to the addresses forth on the signature page hereof or at such
other address specified in writing by the addressee. Notices shall be deemed
communicated upon the earlier of receipt or seventy-two (72) hours from the time
of mailing as provided in this Article IV, and on the business day or first
business day following transmission if given by facsimile.
V. AMENDMENT.
This Escrow Agreement may not be amended, modified, supplemented or
otherwise altered except by an instrument in writing signed by the parties
hereto.
VI. TERMINATION.
This Agreement will terminate upon the disbursement of all funds in the
Escrow Account, as provided above, by the Escrow Agent.
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VII. GOVERNING LAW.
This is a Delaware contract and shall be governed by Delaware law in all
respects.
VIII. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original, and such counterparts
together shall consitute and be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused their names to be hereto
subscribed by their respective authorized representatives as of the day and year
first above written.
TVCA, LLC WILMINGTON TRUST COMPANY,
as Purchaser Escrow Agent
By: By:
-------------------------------- ---------------------------
C. Frederick Wehba II, President Title:
TVCA, INC./ Manager
Address: Address:
1900 Avenue of the Stars, Suite 2840 Rodney Square North
Los Angeles, CA 90067 1100 North Market Street
Fax No.: (310) 282-8585 Wilmington, Delaware 19890
Tel No.: (310) 282-8000 Fax No.: (302) 651 - 1576
Attention: C. Frederick Wehba II Tel No.: (302) 651 - 1834
Attention: W. Chris Sponenberg
TELEVIDEO, INC.
as Seller
By: /s/ K. Philip Hwang
-----------------------------
K. Philip Hwang, CEO
Address:
2345 Harris Way
San Jose, CA 95131
Fax No.: (408) 954-0622
Tel No.: (408) 954-8333
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EXHIBIT "1"
PROMISSORY NOTE
$2,750,000.00 December__, 1998
1. For value received, the undersigned, TVCA HOLDING LLC, a Delaware limited
liability company ("Maker"), promises to pay to the order of TELEVIDEO,
INC., a Delaware corporation ("Payee"), or order, at 2345 Harris Way, San
Jose, CA 95131, or other address directed by Payee, the principal sum of
Two Million Seven Hundred Fifty Thousand Dollars ($2,750,000) with interest
at the rate of seven and one-quarter percent (7.25%) per annum from the
date hereof with monthly payments based on an amortization period of twenty
(20) years. If not earlier paid in full, any unpaid principal and all
accrued interest shall be due and payable on December 1, 2013.
2. Principal and accrued interest shall be payable in equal monthly
installments of Twenty One Thousand Seven Hundred Thirty Five and 34/100
Dollars ($21,735.34) each on the first day of each month commencing on
January 1, 1999. On December 1, 2013, the outstanding principal balance and
any and all accrued interest then due and payable shall be paid in full to
Payee by Maker.
3. Both principal and interest shall be payable to Payee, or at any other
place hereafter designated in writing by the holder(s) and delivered to
Maker. All sums shall be deemed paid upon receipt of same by the holder(s)
hereof.
4. This Promissory Note is secured by that certain Pledge and Security
Agreement ("Pledge Agreement") of even date herewith executed by all of the
members of Maker and that certain Escrow Agreement ("Escrow Agreement") of
even date herewith executed by Maker, Payee, and Wilmington Trust Company,
a Delaware banking corporation.
5. Payments on this Promissory Note shall be applied first to payment of any
late charges, second to payment of accrued interest and third to the
outstanding principal.
6. Maker shall have the right to prepay all or any portion of the indebtedness
evidenced by this Promissory Note at any time without premium or penalty.
7. Subject in all events to the provisions of Section 8 hereof, (i) if Maker
fails to pay in full any monthly installment of principal and interest or
any other sums required to be paid pursuant to this Promissory Note in the
manner set forth in the Escrow Agreement, within ten (10) days after the
due date, or (ii) if Maker defaults in the performance or observance of any
covenant or condition contained in the Pledge Agreement and the Escrow
Agreement and such default is not cured within thirty (30) days after
receipt of written notice of such default, or (iii) if, pursuant to that
certain lease ("Lease") dated as of December __, 1998 between TVCA, LLC, a
Delaware limited liability company, as landlord, and Payee, as tenant, with
respect to certain real property and improvements located in San Jose, CA,
particularly described in the Lease ("Premises"), Payee is required to
purchase the Premises from TVCA, LLC in accordance with the terms of the
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Lease, then and in any of such events, the holder of this Promissory Note
may, without further notice, immediately declare to be due and payable the
entire outstanding indebtedness evidenced by this Promissory Note.
8. Notwithstanding any provisions of this Promissory Note to the contrary,
the performance of Maker's obligations pursuant to this Promissory Note
are conditioned upon Payee, as tenant under the Lease, timely tendering
to TVCA, LLC all rent, charges and monetary obligations under the Lease
("Lease Payments") as and when the same become due and payable in
accordance with the terms of the Lease. In the event that Payee is late
in tendering any Lease Payment to TVCA, LLC, then the applicable due
date for Maker's performance of any of Maker's obligations under this
Promissory Note shall automatically be extended for the same period of
time that Payee was delinquent in the payment of such Lease Payment.
Further, in the event that the Lease is terminated pursuant to Section
10 of the Lease due to a default on the part of Payee as tenant
thereunder, then, in such event, this Promissory Note shall be deemed to
be immediately satisfied in full and Maker shall have no further
obligation to Payee hereunder.
9. This Promissory Note shall be binding Maker and its successors and assigns.
TVCA HOLDING LLC,
a Delaware limited liability company
By:
--------------------------------
C. Frederick Wehba II, Manager
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