Exhibit 10.9
SUBSIDIARY SECURITY AGREEMENT
THIS SUBSIDIARY SECURITY AGREEMENT (the "Agreement"), is entered into
and made effective as of July 28, 2006, by and between TELEPLUS WIRELESS CORP.,
a Nevada corporation (the "Company"), and CORNELL CAPITAL PARTNERS, LP (the
"Secured Party").
WHEREAS, the Company is a wholly owned subsidiary of Teleplus
Enterprises, Inc., a Nevada corporation (the "Parent");
WHEREAS, the Parent issued to the Secured Party, as provided in the
Securities Purchase Agreement dated December 13, 2005 between the Parent and the
Secured Party, and the Secured Party purchased Nine Million Dollars ($9,000,000)
of secured convertible debenture (the "Prior Convertible Debenture"). The
Company entered into a Security Agreement with the Secured Party to secure the
obligations of the Parent under the Prior Convertible Debenture. This Agreement
shall amend and restate the Security Agreement between the Company and the
Secured Party dated December 13, 2005;
WHEREAS, the Parent has requested the Secured Party to make additional
financing available to the Company;
WHEREAS, the Secured Party is willing to provide such additional
financing on the condition that such additional financing is secured hereunder
and under the UCC-1 filed on August 8, 2005 (#2005024148-2) filed in connection
with the Security Agreement between the Company and the Secured Party dated July
15, 2005;
WHEREAS, on the date hereof, the Parent shall issue and sell to the
Secured Party, as provided in the Securities Purchase Agreement dated the date
hereof, and the Secured Party shall purchase up to Three Million Dollars
($3,000,000) of secured convertible debentures (the "Convertible Debentures"),
which shall be convertible into shares of common stock of the Parent, par value
$0.001 (the "Common Stock") (as converted, the "Conversion Shares"), in the
respective amounts set forth opposite each Buyer(s) name on Schedule I attached
to the Securities Purchase Agreement;
WHEREAS, the Company shall benefit from the sale of the Convertible
Debentures by the Parent to the Secured Party;
WHEREAS, to induce the Secured Party to enter into the transaction
contemplated by the Securities Purchase Agreement, the Secured Convertible
Debenture, the Investor Registration Rights Agreement and the Irrevocable
Transfer Agent Instructions (collectively referred to as the "Transaction
Documents"), the Company hereby grants to the Secured Party a security interest
in and to the pledged property identified on Exhibit "A" hereto (collectively
referred to as the "Pledged Property") until the satisfaction of the
Obligations, as defined herein below.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration, the
adequacy and receipt of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE 25.
DEFINITIONS AND INTERPRETATIONS
Section 25.1. Recitals.
The above recitals are true and correct and are incorporated herein, in
their entirety, by this reference.
Section 25.2. Interpretations.
Nothing herein expressed or implied is intended or shall be construed
to confer upon any person other than the Secured Party any right, remedy or
claim under or by reason hereof.
Section 25.3. Obligations Secured.
The obligations secured hereby are any and all obligations of the
Company or the Parent now existing or hereinafter incurred to the Secured Party,
whether oral or written and whether arising before, on or after the date hereof
including, without limitation, those obligations of the Parent to the Secured
Party under the Transaction Documents, the Prior Convertible Debenture, and any
other amounts now or hereafter owed to the Secured Party by the Parent
thereunder or hereunder (collectively, the "Obligations").
ARTICLE 26.
Pledged Property, administration of collateral AND TERMINATION
OF SECURITY INTEREST
Section 26.1. Pledged Property.
(a) The Company hereby pledges to the Secured Party, and creates in the Secured
Party for its benefit, a security interest for such time until the Obligations
are paid in full, in and to all of the property of the Company as set forth in
Exhibit "A" attached hereto and the products thereof and the proceeds of all
such items (collectively, the "Pledged Property"):
(b) Simultaneously with the execution and delivery of this Agreement, the
Company shall make, execute, acknowledge, file, record and deliver to the
Secured Party any documents reasonably requested by the Secured Party to perfect
its security interest in the Pledged Property. Simultaneously with the execution
and delivery of this Agreement, the Company shall make, execute, acknowledge and
deliver to the Secured Party such documents and instruments, including, without
limitation, financing statements, certificates, affidavits and forms as may, in
the Secured Party's reasonable judgment, be necessary to effectuate, complete or
perfect, or to continue and preserve, the security interest of the Secured Party
in the Pledged Property, and the Secured Party shall hold such documents and
instruments as secured party, subject to the terms and conditions contained
herein.
Section 26.2. Rights; Interests; Etc.
(a) So long as no Event of Default (as hereinafter defined) shall have occurred
and be continuing:
(i) the Company shall be entitled to exercise any and all rights pertaining to
the Pledged Property or any part thereof for any purpose not inconsistent with
the terms hereof; and
(ii) the Company shall be entitled to receive and retain any and all payments
paid or made in respect of the Pledged Property.
(b) Upon the occurrence and during the continuance of an Event of Default:
(i) All rights of the Company to exercise the rights which it would otherwise be
entitled to exercise pursuant to Section 2.2(a)(i) hereof and to receive
payments which it would otherwise be authorized to receive and retain pursuant
to Section 2.2(a)(ii) hereof shall be suspended, and all such rights shall
thereupon become vested in the Secured Party who shall thereupon have the sole
right to exercise such rights and to receive and hold as Pledged Property such
payments; provided, however, that if the Secured Party shall become entitled and
shall elect to exercise its right to realize on the Pledged Property pursuant to
Article 5 hereof, then all cash sums received by the Secured Party, or held by
Company for the benefit of the Secured Party and paid over pursuant to Section
2.2(b)(ii) hereof, shall be applied against any outstanding Obligations; and
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(ii) All interest, dividends, income and other payments and distributions which
are received by the Company contrary to the provisions of Section 2.2(b)(i)
hereof shall be received in trust for the benefit of the Secured Party, shall be
segregated from other property of the Company and shall be forthwith paid over
to the Secured Party; or
(iii) The Secured Party in its sole discretion shall be authorized to sell any
or all of the Pledged Property at public or private sale in order to recoup all
of the outstanding principal plus accrued interest owed pursuant to the
Convertible Debenture as described herein
(c) An "Event of Default" shall be deemed to have occurred under this Agreement
upon an Event of Default under the Convertible Debentures.
ARTICLE 27.
attorney-in-fact; performance
Section 27.1. Secured Party Appointed Attorney-In-Fact.
Upon the occurrence of an Event of Default, the Company hereby appoints
the Secured Party as its attorney-in-fact, with full authority in the place and
stead of the Company and in the name of the Company or otherwise, from time to
time in the Secured Party's discretion to take any action and to execute any
instrument which the Secured Party may reasonably deem necessary to accomplish
the purposes of this Agreement, including, without limitation, to receive and
collect all instruments made payable to the Company representing any payments in
respect of the Pledged Property or any part thereof and to give full discharge
for the same. The Secured Party may demand, collect, receipt for, settle,
compromise, adjust, sue for, foreclose, or realize on the Pledged Property as
and when the Secured Party may determine. To facilitate collection, the Secured
Party may notify account debtors and obligors on any Pledged Property to make
payments directly to the Secured Party.
Section 27.2. Secured Party May Perform.
If the Company fails to perform any agreement contained herein, the
Secured Party, at its option, may itself perform, or cause performance of, such
agreement, and the expenses of the Secured Party incurred in connection
therewith shall be included in the Obligations secured hereby and payable by the
Company under Section 8.3.
ARTICLE 28.
representations and warranties
Section 28.1. Authorization; Enforceability.
Each of the parties hereto represents and warrants that it has taken
all action necessary to authorize the execution, delivery and performance of
this Agreement and the transactions contemplated hereby; and upon execution and
delivery, this Agreement shall constitute a valid and binding obligation of the
respective party, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights or by the principles
governing the availability of equitable remedies.
Section 28.2. Ownership of Pledged Property.
The Company warrants and represents that it is the legal and beneficial
owner of the Pledged Property free and clear of any lien, security interest,
option or other charge or encumbrance except for that grant of a security
interest in and to all undertakings, property and assets made by the Company in
favor of Steve Kerekes, Melanie Kerekes, Jim Oattes, Grace Debrabandere, Jim
Reddon, Monica Reddon, Tom Davis and Jane Davis pursuant to that certain General
Security Agreement dated May 11, 2005, and except for that grant of a security
interest in and to all undertakings, property and assets made by Telizon Inc., a
subsidiary of the Company, in favor of James R. Fairhead In Trust, Tom Hards In
Trust, Steve Kerekes In Trust, Paul Chapman In Trust, Jacques Pilon In Trust,
Tom Davis In Trust, Alan R. Purser In Trust and Arnold McAuley In Trust
(collectively the "Vendors") and a pledge to the Vendors of all of the shares of
Telizon Inc. purchased by Teleplus Connect Corp., a subsidiary of the Company,
from the Vendors pursuant to the General Security Agreement and Share Pledge
Agreement among Teleplus Connect, Corp., Telizon Inc. and the Vendors, effective
June 30, 2005.
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ARTICLE 29.
default; remedies; substitute collateral
Section 29.1. Default and Remedies.
(a) If an Event of Default occurs, then in each such case the Secured Party may
declare the Obligations to be due and payable immediately, by a notice in
writing to the Company, and upon any such declaration, the Obligations shall
become immediately due and payable. If an Event of Default occurs and is
continuing for the period set forth therein, then the Obligations shall
automatically become immediately due and payable without declaration or other
act on the part of the Secured Party.
(b) Upon the occurrence of an Event of Default, the Secured Party shall: (i) be
entitled to receive all distributions with respect to the Pledged Property, (ii)
to cause the Pledged Property to be transferred into the name of the Secured
Party or its nominee, (iii) to dispose of the Pledged Property, and (iv) to
realize upon any and all rights in the Pledged Property then held by the Secured
Party.
Section 29.2. Method of Realizing Upon the Pledged Property; Other Remedies.
Upon the occurrence of an Event of Default, in addition to any rights
and remedies available at law or in equity, the following provisions shall
govern the Secured Party's right to realize upon the Pledged Property:
(a) Any item of the Pledged Property may be sold for cash or other value in any
number of lots at brokers board, public auction or private sale and may be sold
without demand, advertisement or notice (except that the Secured Party shall
give the Company ten (10) days' prior written notice of the time and place or of
the time after which a private sale may be made (the "Sale Notice")), which
notice period shall in any event is hereby agreed to be commercially reasonable.
At any sale or sales of the Pledged Property, the Company may bid for and
purchase the whole or any part of the Pledged Property and, upon compliance with
the terms of such sale, may hold, exploit and dispose of the same without
further accountability to the Secured Party. The Company will execute and
deliver, or cause to be executed and delivered, such instruments, documents,
assignments, waivers, certificates, and affidavits and supply or cause to be
supplied such further information and take such further action as the Secured
Party reasonably shall require in connection with any such sale.
(b) Any cash being held by the Secured Party as Pledged Property and all cash
proceeds received by the Secured Party in respect of, sale of, collection from,
or other realization upon all or any part of the Pledged Property shall be
applied as follows:
(i) to the payment of all amounts due the Secured Party for the expenses
reimbursable to it hereunder or owed to it pursuant to Section 8.3 hereof;
(ii) to the payment of the Obligations then due and unpaid.
(iii) the balance, if any, to the person or persons entitled thereto, including,
without limitation, the Company.
(c) In addition to all of the rights and remedies which the Secured Party may
have pursuant to this Agreement, the Secured Party shall have all of the rights
and remedies provided by law, including, without limitation, those under the
Uniform Commercial Code.
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(i) If the Company fails to pay such amounts due upon the occurrence of an Event
of Default which is continuing, then the Secured Party may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same against the
Company and collect the monies adjudged or decreed to be payable in the manner
provided by law out of the property of Company, wherever situated. The Secured
Party may proceed against the Company without proceeding first against any other
party, including, without limitation, the Parent.
(ii) The Company agrees that it shall be liable for any reasonable fees,
expenses and costs incurred by the Secured Party in connection with enforcement,
collection and preservation of the Transaction Documents, including, without
limitation, reasonable legal fees and expenses, and such amounts shall be deemed
included as Obligations secured hereby and payable as set forth in Section 8.3
hereof.
Section 29.3. Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relating to the Company or the property of the Company or of
such other obligor or its creditors, the Secured Party (irrespective of whether
the Obligations shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Secured Party shall
have made any demand on the Company for the payment of the Obligations), subject
to the rights of Previous Security Holders, shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of the Obligations and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Secured Party (including any claim for the reasonable
legal fees and expenses and other expenses paid or incurred by the Secured Party
permitted hereunder and of the Secured Party allowed in such judicial
proceeding), and
(ii) to collect and receive any monies or other property payable or deliverable
on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by the Secured Party to make such
payments to the Secured Party and, in the event that the Secured Party shall
consent to the making of such payments directed to the Secured Party, to pay to
the Secured Party any amounts for expenses due it hereunder.
Section 29.4. Duties Regarding Pledged Property.
The Secured Party shall have no duty as to the collection or protection
of the Pledged Property or any income thereon or as to the preservation of any
rights pertaining thereto, beyond the safe custody and reasonable care of any of
the Pledged Property actually in the Secured Party's possession.
ARTICLE 30.
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, from the date hereof and until
the Obligations have been fully paid and satisfied, unless the Secured Party
shall consent otherwise in writing (as provided in Section 8.4 hereof):
Section 30.1. Existence, Properties, Etc.
(a) The Company shall do, or cause to be done, all things, or proceed with due
diligence with any actions or courses of action, that may be reasonably
necessary (i) to maintain Company's due organization, valid existence and good
standing under the laws of its state of incorporation, and (ii) to preserve and
keep in full force and effect all qualifications, licenses and registrations in
those jurisdictions in which the failure to do so could have a Material Adverse
Effect (as defined below); and (b) the Company shall not do, or cause to be
done, any act impairing the Company's corporate power or authority (i) to carry
on the Company's business as now conducted, and (ii) to execute or deliver this
Agreement or any other document delivered in connection herewith, including,
without limitation, any UCC-1 Financing Statements required by the Secured Party
(which other loan instruments collectively shall be referred to as the "Loan
Instruments") to which it is or will be a party, or perform any of its
obligations hereunder or thereunder. For purpose of this Agreement, the term
"Material Adverse Effect" shall mean any material and adverse affect as
determined by Secured Party in its reasonable discretion, whether individually
or in the aggregate, upon (a) the Company's assets, business, operations,
properties or condition, financial or otherwise; (b) the Company's to make
payment as and when due of all or any part of the Obligations; or (c) the
Pledged Property.
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Section 30.2. Financial Statements and Reports.
The Company shall provide the Security Party with such financial data
as the Secured Party may reasonably request, within a reasonable time after any
such request, including, without limitation the following financial data:
(a) The balance sheet of the Company as of the close of each fiscal year, the
statement of earnings and retained earnings of the Company as of the close of
such fiscal year, and statement of cash flows for the Company for such fiscal
year, all in reasonable detail, prepared in accordance with generally accepted
accounting principles consistently applied, certified by the chief executive and
chief financial officers of the Company as being true and correct and
accompanied by a certificate of the chief executive and chief financial officers
of the Company, stating that the Company has kept, observed, performed and
fulfilled each covenant, term and condition of this Agreement and the other Loan
Instruments during such fiscal year and that no Event of Default hereunder has
occurred and is continuing, or if an Event of Default has occurred and is
continuing, specifying the nature of same, the period of existence of same and
the action the Company proposes to take in connection therewith;
(b) A balance sheet of the Company as of the close of each month, and statement
of earnings and retained earnings of the Company as of the close of such month,
all in reasonable detail, and prepared substantially in accordance with
generally accepted accounting principles consistently applied, certified by the
chief executive and chief financial officers of the Company as being true and
correct; and
(c) Copies of all accountants' reports and accompanying financial reports
submitted to the Company by independent accountants in connection with each
annual examination of the Company.
Section 30.3. Accounts and Reports.
The Company shall maintain a standard system of accounting in
accordance with generally accepted accounting principles consistently applied
and provide, at its sole expense, to the Secured Party the following:
(a) as soon as available, a copy of any notice or other communication alleging
any nonpayment or other material breach or default, or any foreclosure or other
action respecting any material portion of its assets and properties, received
respecting any of the indebtedness of the Company in excess of $100,000 (other
than the Obligations), or any demand or other request for payment under any
guaranty, assumption, purchase agreement or similar agreement or arrangement
respecting the indebtedness or obligations of others in excess of $100,000,
including any received from any person acting on behalf of the Secured Party or
beneficiary thereof; and
(b) within fifteen (15) days after the making of each submission or filing, a
copy of any report, financial statement, notice or other document, whether
periodic or otherwise, submitted to the shareholders of the Company, or
submitted to or filed by the Company with any governmental authority involving
or affecting (i) the Company that could have a Material Adverse Effect; (ii) the
Obligations; (iii) any part of the Pledged Property; or (iv) any of the
transactions contemplated in this Agreement or the Loan Instruments.
Section 30.4. Maintenance of Books and Records; Inspection.
The Company shall maintain its books, accounts and records in
accordance with generally accepted accounting principles consistently applied,
and permit the Secured Party, its officers and employees and any professionals
designated by the Secured Party in writing, at any time to visit and inspect any
of its properties (including but not limited to the collateral security
described in the Transaction Documents and/or the Loan Instruments), corporate
books and financial records, and to discuss its accounts, affairs and finances
with any employee, officer or director thereof.
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Section 30.5. Maintenance and Insurance.
(a) The Company shall maintain or cause to be maintained, at its own expense,
all of its assets and properties in good working order and condition, subject to
ordinary wear and tear, making all necessary repairs thereto and renewals and
replacements thereof.
(b) The Company shall maintain or cause to be maintained, at its own expense,
insurance in form, substance and amounts (including deductibles), which the
Company deems reasonably necessary to the Company's business, (i) adequate to
insure all assets and properties of the Company, which assets and properties are
of a character usually insured by persons engaged in the same or similar
business against loss or damage resulting from fire or other risks included in
an extended coverage policy; (ii) against public liability and other tort claims
that may be incurred by the Company; (iii) as may be required by the Transaction
Documents and/or the Loan Instruments or applicable law and (iv) as may be
reasonably requested by Secured Party, all with adequate, financially sound and
reputable insurers.
Section 30.6. Contracts and Other Collateral.
The Company shall perform all of its obligations under or with respect
to each instrument, receivable, contract and other intangible included in the
Pledged Property to which the Company is now or hereafter will be party on a
timely basis and in the manner therein required, including, without limitation,
this Agreement.
Section 30.7. Defense of Collateral, Etc.
The Company shall defend and enforce its right, title and interest in
and to any part of: (a) the Pledged Property; and (b) if not included within the
Pledged Property, those assets and properties whose loss could have a Material
Adverse Effect, the Company shall defend the Secured Party's right, title and
interest in and to each and every part of the Pledged Property, each against all
manner of claims and demands on a timely basis to the full extent permitted by
applicable law.
Section 30.8. Payment of Debts, Taxes, Etc.
The Company shall pay, or cause to be paid, all of its indebtedness and
other liabilities and perform, or cause to be performed, all of its obligations
in accordance with the respective terms thereof, and pay and discharge, or cause
to be paid or discharged, all taxes, assessments and other governmental charges
and levies imposed upon it, upon any of its assets and properties on or before
the last day on which the same may be paid without penalty, as well as pay all
other lawful claims (whether for services, labor, materials, supplies or
otherwise) as and when due
Section 30.9. Taxes and Assessments; Tax Indemnity.
The Company shall (a) file all tax returns and appropriate schedules
thereto that are required to be filed under applicable law, prior to the date of
delinquency, (b) pay and discharge all taxes, assessments and governmental
charges or levies imposed upon the Company, upon its income and profits or upon
any properties belonging to it, prior to the date on which penalties attach
thereto, and (c) pay all taxes, assessments and governmental charges or levies
that, if unpaid, might become a lien or charge upon any of its properties;
provided, however, that the Company in good faith may contest any such tax,
assessment, governmental charge or levy described in the foregoing clauses (b)
and (c) so long as appropriate reserves are maintained with respect thereto.
Section 30.10. Compliance with Law and Other Agreements.
The Company shall maintain its business operations and property owned
or used in connection therewith in compliance with (a) all applicable federal,
state and local laws, regulations and ordinances governing such business
operations and the use and ownership of such property, and (b) all agreements,
licenses, franchises, indentures and mortgages to which the Company is a party
or by which the Company or any of its properties is bound. Without limiting the
foregoing, the Company shall pay all of its indebtedness promptly in accordance
with the terms thereof.
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Section 30.11. Notice of Default.
The Company shall give written notice to the Secured Party of the
occurrence of any default or Event of Default under this Agreement, the
Transaction Documents or any other Loan Instrument or any other agreement of
Company for the payment of money, promptly upon the occurrence thereof.
Section 30.12. Notice of Litigation.
The Company shall give notice, in writing, to the Secured Party of (a)
any actions, suits or proceedings wherein the amount at issue is in excess of
$100,000, instituted by any persons against the Company, or affecting any of the
assets of the Company, and (b) any dispute, not resolved within fifteen (15)
days of the commencement thereof, between the Company on the one hand and any
governmental or regulatory body on the other hand, which might reasonably be
expected to have a Material Adverse Effect on the business operations or
financial condition of the Company.
ARTICLE 31.
NEGATIVE COVENANTS
The Company covenants and agrees that, from the date hereof until the
Obligations have been fully paid and satisfied, the Company shall not, unless
the Secured Party shall consent otherwise in writing:
Section 31.1. Liens and Encumbrances.
The Company shall not directly or indirectly make, create, incur,
assume or permit to exist any assignment, transfer, pledge, mortgage, security
interest or other lien or encumbrance of any nature in, to or against any part
of the Pledged Property or of the Company's capital stock, or offer or agree to
do so, or own or acquire or agree to acquire any asset or property of any
character subject to any of the foregoing encumbrances (including any
conditional sale contract or other title retention agreement), or assign, pledge
or in any way transfer or encumber its right to receive any income or other
distribution or proceeds from any part of the Pledged Property or the Company's
capital stock; or enter into any sale-leaseback financing respecting any part of
the Pledged Property as lessee, or cause or assist the inception or continuation
of any of the foregoing.
Section 31.2. Articles, By-Laws, Mergers, Consolidations, Acquisitions and
Sales.
Without the prior express written consent of the Secured Party, which
consent shall not be unreasonably withheld, the Company shall not: (a) Amend its
Articles of Incorporation or By-Laws; (b) be a party to any merger,
consolidation or corporate reorganization, (c) purchase or otherwise acquire all
or substantially all of the assets or stock of, or any partnership or joint
venture interest in, any other person, firm or entity, (d) sell, transfer,
convey, grant a security interest in or lease all or any substantial part of its
assets, nor (e) create any subsidiaries nor convey any of its assets to any
subsidiary in excess of $1,000,000 in the aggregate.
Section 31.3. Management, Ownership.
Tim Connolly shall remain employed by the Company in his current
capacity. This provision is a material factor in the Secured Party's willingness
to institute and maintain a lending relationship with the Company.
Section 31.4. Dividends, Etc.
Except for dividends payable to the Parent, the Company shall not
declare or pay any dividend of any kind, in cash or in property, on any class of
its capital stock, nor purchase, redeem, retire or otherwise acquire for value
any shares of such stock, nor make any distribution of any kind in respect
thereof, nor make any return of capital to shareholders, nor make any payments
in respect of any pension, profit sharing, retirement, stock option, stock
bonus, incentive compensation or similar plan (except as required or permitted
hereunder), without the prior written consent of the Secured Party, which
consent shall not be unreasonably withheld.
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Section 31.5. Conduct of Business.
The Company will continue to engage, in an efficient and economical
manner, in a business of the same general type as conducted by it on the date of
this Agreement.
Section 31.6. Places of Business.
The location of the Company's chief place of business is 7575
TransCanada - Suite 305,_ St-Laurent, Quebec H4T 1V6. The Company shall not
change the location of its chief place of business, chief executive office or
any place of business disclosed to the Secured Party or move any of the Pledged
Property from its current location without thirty (30) days prior written notice
to the Secured Party in each instance.
ARTICLE 32.
MISCELLANEOUS
Section 32.1. Notices.
All notices or other communications required or permitted to be given
pursuant to this Agreement shall be in writing and shall be considered as duly
given on: (a) the date of delivery, if delivered in person, by nationally
recognized overnight delivery service or (b) five (5) days after mailing if
mailed from within the continental United States by certified mail, return
receipt requested to the party entitled to receive the same:
If to the Secured Party: Cornell Capital Partners, LP
101 Hudson Street, Suite 3700
Jersey City, New Jersey 07302
Attention: Mark Angelo
Portfolio Manager
Telephone: (201) 986-8300
Facsimile: (201) 985-8266
With a copy to: David Gonzalez, Esq.
101 Hudson Street, Suite 3700
Jersey City, NJ 07302
Telephone: (201) 985-8300
Facsimile: (201) 985-8266
And if to the Company: Teleplus Wireless Corp.
7575 TransCanada - Suite 305
St-Laurent, Quebec H4T 1V6
Attention: Marius Silvasan
Telephone: (514) 344-0778
Facsimile: (514) 344-8675
With a copy to: Arnstein & Lehr, LLP
120 S. Riverside Plaza - 12th Floor
Chicago, Illinois 60606
Attention: Jerold N. Siegan, Esq.
Telephone: (312) 876-7874
Facsimile: (312) 876-6274
Any party may change its address by giving notice to the other party
stating its new address. Commencing on the tenth (10th) day after the giving of
such notice, such newly designated address shall be such party's address for the
purpose of all notices or other communications required or permitted to be given
pursuant to this Agreement.
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Section 32.2. Severability.
If any provision of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render invalid or unenforceable
any other severable provision of this Agreement, and this Agreement shall be
carried out as if any such invalid or unenforceable provision were not contained
herein.
Section 32.3. Expenses.
In the event of an Event of Default, the Company will pay to the
Secured Party the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel, which the Secured Party may incur
in connection with: (i) the custody or preservation of, or the sale, collection
from, or other realization upon, any of the Pledged Property; (ii) the exercise
or enforcement of any of the rights of the Secured Party hereunder or (iii) the
failure by the Company to perform or observe any of the provisions hereof.
Section 32.4. Waivers, Amendments, Etc.
The Secured Party's delay or failure at any time or times hereafter to
require strict performance by Company of any undertakings, agreements or
covenants shall not waiver, affect, or diminish any right of the Secured Party
under this Agreement to demand strict compliance and performance herewith. Any
waiver by the Secured Party of any Event of Default shall not waive or affect
any other Event of Default, whether such Event of Default is prior or subsequent
thereto and whether of the same or a different type. None of the undertakings,
agreements and covenants of the Company contained in this Agreement, and no
Event of Default, shall be deemed to have been waived by the Secured Party, nor
may this Agreement be amended, changed or modified, unless such waiver,
amendment, change or modification is evidenced by an instrument in writing
specifying such waiver, amendment, change or modification and signed by the
Secured Party.
Section 32.5. Continuing Security Interest.
This Agreement shall create a continuing security interest in the
Pledged Property and shall: (i) remain in full force and effect until payment in
full of the Obligations; and (ii) be binding upon the Company and its successors
and heirs and (iii) inure to the benefit of the Secured Party and its successors
and assigns. Upon the payment or satisfaction in full of the Obligations, the
Company shall be entitled to the return, at its expense, of such of the Pledged
Property as shall not have been sold in accordance with Section 5.2 hereof or
otherwise applied pursuant to the terms hereof.
Section 32.6. Independent Representation.
Each party hereto acknowledges and agrees that it has received or has
had the opportunity to receive independent legal counsel of its own choice and
that it has been sufficiently apprised of its rights and responsibilities with
regard to the substance of this Agreement.
Section 32.7. Applicable Law: Jurisdiction.
This Agreement shall be governed by and interpreted in accordance with
the laws of the State of New Jersey without regard to the principles of conflict
of laws. The parties further agree that any action between them shall be heard
in Hudson County, New Jersey, and expressly consent to the jurisdiction and
venue of the Superior Court of New Jersey, sitting in Hudson County and the
United States District Court for the District of New Jersey sitting in Newark,
New Jersey for the adjudication of any civil action asserted pursuant to this
Paragraph.
Section 32.8. Waiver of Jury Trial.
AS A FURTHER INDUCEMENT FOR THE SECURED PARTY TO ENTER INTO THIS
AGREEMENT AND TO MAKE THE FINANCIAL ACCOMMODATIONS TO THE COMPANY, THE COMPANY
HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATED IN ANY
WAY TO THIS AGREEMENT AND/OR ANY AND ALL OTHER DOCUMENTS RELATED TO THIS
TRANSACTION.
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Section 32.9. Entire Agreement.
This Agreement constitutes the entire agreement among the parties and
supersedes any prior agreement or understanding among them with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
TELEPLUS WIRELESS CORP.
By: /s/ Marius Silvasan
Name: Marius Silvasan
Title: President
SECURED PARTY:
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Mark Angelo
Name: Mark Angelo
Title: Portfolio Manager
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exhibit A
DEFINITION OF PLEDGED PROPERTY
For the purpose of securing prompt and complete payment and performance
by the Company of all of the Obligations, the Company unconditionally and
irrevocably hereby grants to the Secured Party a continuing security interest in
and to, and lien upon, the following Pledged Property of the Company:
(a) all goods of the Company, including, without limitation, machinery,
equipment, furniture, furnishings, fixtures, signs, lights, tools, parts,
supplies and motor vehicles of every kind and description, now or hereafter
owned by the Company or in which the Company may have or may hereafter acquire
any interest, and all replacements, additions, accessions, substitutions and
proceeds thereof, arising from the sale or disposition thereof, and where
applicable, the proceeds of insurance and of any tort claims involving any of
the foregoing;
(b) all inventory of the Company, including, but not limited to, all goods,
wares, merchandise, parts, supplies, finished products, other tangible personal
property, including such inventory as is temporarily out of Company's custody or
possession and including any returns upon any accounts or other proceeds,
including insurance proceeds, resulting from the sale or disposition of any of
the foregoing;
(c) all contract rights and general intangibles of the Company, including,
without limitation, goodwill, trademarks, trade styles, trade names, leasehold
interests, partnership or joint venture interests, patents and patent
applications, copyrights, deposit accounts whether now owned or hereafter
created;
(d) all documents, warehouse receipts, instruments and chattel paper of the
Company whether now owned or hereafter created;
(e) all accounts and other receivables, instruments or other forms of
obligations and rights to payment of the Company (herein collectively referred
to as "Accounts"), together with the proceeds thereof, all goods represented by
such Accounts and all such goods that may be returned by the Company's
customers, and all proceeds of any insurance thereon, and all guarantees,
securities and liens which the Company may hold for the payment of any such
Accounts including, without limitation, all rights of stoppage in transit,
replevin and reclamation and as an unpaid vendor and/or lienor, all of which the
Company represents and warrants will be bona fide and existing obligations of
its respective customers, arising out of the sale of goods by the Company in the
ordinary course of business;
(f) to the extent assignable, all of the Company's rights under all present and
future authorizations, permits, licenses and franchises issued or granted in
connection with the operations of any of its facilities;
(g) all products and proceeds (including, without limitation, insurance
proceeds) from the above-described Pledged Property.