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EXHIBIT 1
PLEDGE AGREEMENT
PLEDGE AGREEMENT ("Agreement"), dated as of June 2, 2000 by and among
Global DataTel, Inc. ("Pledgor") and Surge Components, Inc. (the "Pledgee").
R E C I T A L S
WHEREAS, the parties hereto have entered into an Asset Purchase
Agreement, dated December 8, 1999, which provides for the sale of substantially
all of the assets of Pledgor to Pledgee (the "Global Acquisition") upon
shareholder approval of (a) the sale by Pledgor's shareholders and (b) the
purchase by Pledgee's shareholders (the "Shareholder Approval");
WHEREAS, Pledgee has loaned or agreed to loan Pledgor $6,250,000 since
the execution of the Asset Purchase Agreement (the "Loan");
WHEREAS, Pledgor has executed three promissory notes reflecting the
Loan (the "Note and Loan Documents"),
WHEREAS, the Pledgor and Pledgee believe that other than Shareholder
approval, all other conditions precedent to the closing (the "Closing") of
Global Acquisition can be currently satisfied; and
WHEREAS, Pledgor and Pledgee agree that a pledge of substantially all
of the assets of Pledgor is necessary to secure such Loan.
NOW, THEREFORE, to induce Pledgee to make the Loan and in consideration
thereof, and to secure the prompt and full payment of the said principal sum of
money and interest and all other sums becoming due to be paid under the Note and
the Loan Documents and all renewals and extensions thereof, and the performance
of all of the terms, provisions, covenants and agreements of this Pledge
Agreement and the Note and Loan Documents to be performed by Pledgor (all of the
foregoing being hereinafter called, collectively, the "Obligations"), Pledgor
does hereby pledge and grant to Pledgee and each and all of its successors and
assigns a security interest in and to all of the property of Pledgor, of any
nature whatsoever, no matter where located (hereinafter called the "Collateral")
including, but not limited to:
(a) All of the furniture, fixtures, leasehold improvements, machinery,
equipment, and other physical assets, as set forth in Part 1 of Schedule A (the
"Assets Schedule"), annexed hereto.
(b) All accounts and notes receivable, together with the proceeds
thereof and the rights to all amounts due and to become due thereunder, and
claims and causes of action of Pledgor arising out of the operation of its
business, as set forth in Part 2 of the Assets Schedule.
(c) Lists of all customers and prospective customers (collectively the
"Customers") now or prospectively buying product or using services provided by
Pledgor as set forth in Part 3 of the Assets Schedule; all of Pledgor's rights
to sell to or serve the Customers with their requirements; and all agreements,
contracts, commitments, arrangements or understandings with Customers (the
"Customer Contracts"), as set forth in Part 4 of the Assets Schedule, subject to
the consent of the Customers, together with the rights to all amounts due or to
become due thereunder and all claims with respect thereto; it being understood
that the performance of Pledgor's obligations under any Customer Contract shall
not be deemed to have been assigned hereunder if the assignment would constitute
a default thereunder.
(d) Available books of account, and accounting, financial and other
records of Pledgor relating to its business.
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(e) All prepayments, advances or other deposits made by Customers prior
to the date hereof with respect to products or services contracted for but not
shipped or provided as of this date, as set forth in Part 5 of the Assets
Schedule.
(f) All insurance policies of Pledgor, as set forth in Part 6 of the
Assets Schedule, and claims and rights thereunder relating to its business.
(g) Pledgor's right, title and interest in executory agreements with
suppliers of its business, employment agreements, non-competition agreements,
non-disclosure agreements, leases and all rental service agreements in effect
with respect to the operation of Global's business, as set forth in Part 7 of
the Assets Schedule, together with all rights to enforce the same and all claims
and causes of action with respect thereto.
(h) All paid up licenses and permits, processes, know-how, information
and trade secrets owned, held or claimed by Pledgor relating to its business, as
set forth in Part 8 of the Assets Schedule.
(i) All cash and checks on hand, on deposit in bank accounts maintained
by Pledgor on this date, as set forth in Part 9 of the Assets Schedule.
(j) Any other assets of Pledgor relating to its business, as set forth
in Part 10 of the Assets Schedule, including, without limitation, Pledgor's
rights to the security deposit with respect to any lease.
All defined terms contained in this Pledge Agreement shall have the same meaning
as set forth in the Note and Loan Documents.
And Pledgor further covenants and agrees:
1. Pledgor hereby delegates the full and complete power to do any and
all things necessary or incidental to carrying out the business of the Pledgor
and to manage and conduct the Pledgor's business, to the designee of Pledgee,
Superus Holdings, Inc. ("Superus"), which shall possess and enjoy all the rights
and powers of management of Pledgor without limitation. Superus shall execute on
behalf of Pledgor such agreements, contracts, leases, instruments or other
documents as it shall from time to time approve, such approval to be
conclusively evidenced by its execution and delivery of any of the foregoing,
including, without limitation: (a) checks, drafts, notes or other negotiable
instruments; (b) deeds of trust and assignments of rights; (c) deeds,
assignments and bills of sale; (d) equipment leases; (e) loan agreements,
mortgages, security agreements, pledge agreements and financial statements; and
(f) any other documents or instruments of a nature required to conduct the
business of Pledgor. Superus shall also have the right to (i) buy, sell,
license, transfer, release, surrender or abandon any or all of Pledgor's
property or any portion thereon, including, but not limited to, a transfer of
Pledgor's technology; (ii) borrow money for operations, and if security is
required therefor, to collateralize or subject to any other security device any
portion of Pledgor's property, to obtain replacement therefor or reference,
increase, modify, consolidate or extend same; (iii) to employ persons in the
operation and management of Pledgor's business on such terms and conditions as
Superus shall determine. The signatures of Superus upon any and all such
instruments, agreements, contracts, leases, conveyances or other documents shall
be sufficient to bind Pledgor in respect thereto.
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2. Pledgor shall (a) pay promptly when due (whether by acceleration or
otherwise) all sums becoming due under, and keep, observe and perform all the
terms, provisions, covenants and agreements to be performed by Pledgor under the
Note and the Loan Documents; (b) promptly repair, restore or rebuild any
Collateral which may become damaged or be destroyed; (c) keep said Collateral in
good condition and repair, without waste, and free from mechanics' or other
liens or claims for lien not expressly subordinated to the rights of Pledgee
hereunder unless within thirty (30) days from the filing thereof such lien or
claim for lien shall be discharged of record or an indemnity satisfactory to
Pledgee is provided; (d) pay when due any indebtedness which may be secured by a
lien or charge on any of the Collateral superior to the rights of Pledgee
hereunder, and upon request exhibit satisfactory evidence of the discharge of
such prior lien to Pledgee; (e) complete within a reasonable time any building
improvements now or at any time in process of erection; (f) comply with all
requirements of law or municipal ordinances with respect to the Collateral and
the use thereof; (g) make no alterations to the Collateral without the written
consent of Pledgee first obtained; (h) not suffer or permit, without the consent
of Pledgee first obtained, any sale, transfer of assignment of any right, title
or interest of the Pledgor to any right, title or interest of Pledgor in or to
the Collateral; (i) from time to time execute all such statements and other
documents as Pledgee may request in order to perfect and continue in full effect
any and all of the security interests created by this Pledge Agreement,
including financing statements; and (j) permit Pledgee and its representatives
to inspect the Collateral as often as the Pledgee shall reasonably desire to do
so.
3. Pledgor shall sign and execute alone or with Pledgee any and all
financing statements or other documents or procure any and all documents and pay
any and all connected costs, expenses and fees, including attorneys' fees
(including, but not limited to, all appellate level and post-judgement
proceedings), necessary to protect the security interest under this Pledge
Agreement against the rights, interests or claims of third persons.
4. Pledgor shall pay when due all taxes, if any, levied upon all
personal property constituting Collateral hereunder, and shall, upon written
request, furnish to Pledgee duplicate receipts therefor. To prevent default
hereunder, Pledgor shall pay in full under protest, in the manner provided by
statute, any tax or assessment which Pledgor may desire to contest.
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5. Pledgor shall (A) from time to time promptly execute and deliver to
Pledgee all such other assignments, certificates, supplemental writings and
financing statements, and do all such other acts or things as Pledgee may
reasonably request in order to more fully evidence and perfect the security
interest created herein; (B) punctually and properly perform all of Pledgor's
agreements and obligations under the Note and the Loan Documents and under any
other security agreement, mortgage, deed or trust, collateral pledge, agreement
or contract of any kind now or hereafter existing as security for or in
connection with payment of the Obligations, or any part thereof; (C) pay the
Obligations in accordance with the terms thereof and in accordance with the
terms of the Note and the Loan Documents or other writings evidencing the
Obligations, or any part thereof; (D) promptly furnish Pledgee with any
information or writings which Pledgee may reasonably request concerning the
Collateral; (E) allow Pledgee to inspect all records of Pledgor relating to the
Collateral, the Obligations and the business and operations of Pledgor, and to
make and take away copies of such records; (F) promptly notify Pledgee of any
change in any facts or circumstances warranted or represented by Pledgor in this
Pledge Agreement or in any other writing furnished by Pledgor to Pledgee in
connection with the Collateral, the Obligations or the business and operation of
Pledgor; (G) promptly notify Pledgee of any claim, action or proceeding
affecting title to the Collateral, or any part thereof, or the security interest
created herein, and, at the request of Pledgee, appear in and defend, at
Pledgor's expense, any such action or proceeding; and (H) promptly, after being
requested by Pledgee, pay to Pledgee the amount of all expenses, including
attorneys' fees (including, but not limited to, all appellate level and
post-judgment proceedings) and other legal expenses, reasonably incurred by
Pledgee in enforcing the security interest created herein.
6. Pledgor shall keep all the Collateral insured in accordance with all
the requirements of the Pledgee, and in case of insurance about to expire, shall
deliver renewal policies (or certificates thereof) not less than thirty (30)
days prior to the respective dates of expiration.
7. Pledgor represents and warrants that:
(a) Pledgor has authority to execute and deliver this Pledge Agreement;
(b) Except as set forth in Schedule A attached hereto, no financing
statement covering the Collateral, or any part thereof, has been filed with any
filing office;
(c) Except as set forth in Schedule A attached hereto, no other
security agreement covering the Collateral, or any part thereof, has been made
and no security interest, other than the one herein created has attached or been
perfected in the Collateral or in any part thereof;
(d) all information supplied and statements made in any financial or
credit statements or applications for credit prior to the execution of this
Pledge Agreement are true and correct in all respects as of the date hereof; and
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(e) at the time Pledgee's security interest attaches to any of the
Collateral or its proceeds, Pledgor will be the lawful owner with the right to
transfer any interest therein, and that Pledgor will make such further
assurances as to prove title to the Collateral in Pledgee as may be required and
will defend the Collateral and its proceeds against the lawful claims and
demands of all persons whomsoever.
The delivery at any time by Pledgor to Pledgee of the Collateral shall
constitute a representation and warranty by Pledgor under this Pledge Agreement
that, with respect to such Collateral, and each item thereof, Pledgor, is the
owner of the Collateral and the matters heretofore represented and warranted in
this Paragraph 6 are true and correct. Further, Pledgor, upon the request of
Pledgee, agrees to amend this Pledge Agreement and any and all financing
statements with an accurate and itemized list, when known, of the Collateral now
generally described herein and in said financing statements and to include in
said accurate and itemized list an identification of the Collateral by make,
model, serial number and other appropriate descriptive data.
8. In case of default herein, Pledgee may, but need not, make any
payment or perform any act herein required of Pledgor in any form and manner
deemed expedient, and may, but need not, make full or partial payments of
principal or interest on prior encumbrances, if any, and purchase, discharge,
compromise or settle any tax lien or other prior lien or title or claim thereof,
or redeem from any tax sale or forfeiture affecting the Collateral or contest
any tax or assessment. All moneys paid for any of the purposes herein authorized
and all expenses paid or incurred in connection therewith, including attorneys'
fees, and any other moneys advanced by Pledgee to protect the Collateral, shall
be so much additional indebtedness secured hereby and shall become immediately
due and payable without notice and with interest thereon at the Default Rate (as
defined in the Note). Inaction of Pledgee shall never be considered as a waiver
of any right accruing to it on account of any default hereunder on the part of
Pledgor.
9. At the option and declaration of Pledgee, all unpaid sums secured by
this Pledge Agreement shall, notwithstanding anything in this Pledge Agreement
to the contrary, become due and payable (a) after its due date in case of
non-payment when due of any amount due under the Note or the Loan Documents, or
(b) in case of the breach of any covenant of Pledgor contained herein or in the
Loan Documents, or the failure of Pledgor to keep, observe and perform in full
any term and provision of this Pledge Agreement, the Note or the Loan Documents
to be kept, observed or performed by it, other than for payment of money, 30
days after written notice to Pledgor, or (c) upon discovery of Pledgee of the
untruth of any material statement, warranty or representation of Pledgor herein
or in the Loan Documents.
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10. Upon the maturity of any obligation, by acceleration or otherwise,
Pledgee may exercise any rights and remedies available to it under the New York
Commercial Code, or otherwise available to it, in addition to, and not in lieu
of, any rights and remedies expressly granted in this Pledge Agreement. Except
as otherwise expressly provided by law, Pledgee shall have the right to purchase
any and all of the Collateral at any public or private sale free of any right of
redemption by Pledgor and to apply the proceeds of any such disposition to the
payment of the Obligations, after first deducting from said proceeds all
expenses of re-taking, holding, preparing for sale, selling and the like, and
the attorneys' fees (including, but not limited to, all appellate level and
post-judgment proceedings) and legal expenses incurred by Pledgee, rendering any
residue to Pledgor who shall remain liable for any deficiency. Any notification
of intended disposition of any Collateral required by law shall be deemed
reasonably and properly given if given at least five (5) calendar days before
such disposition.
11. Any notice or other communication required or permitted to be given
shall be in writing addressed to the respective party as set forth below and may
be personally served, telecopied or sent by overnight courier or U.S. Mail and
shall be deemed given: (a) if served in person, when served; (b) if telecopied,
on the date of transmission if before 3:00 p.m. (New York time) on a business
day; provided that a hard copy of such notice is also sent pursuant to (c) or
(d) below; (c) if by overnight courier, on the first business day after delivery
to the courier; or (d) if by U.S. Mail, certified or registered mail, return
receipt requested on the fifth (5th) day after deposit in the mail postage
prepaid.
Notices to the Pledgor: Richard Baker
Global DataTel, Inc.
3333 Congress Avenue, Suite 404
Delray Beach, Florida 22445
Telephone No.: (561) 276-8260
Fax. No.: (561) 276-7960
With a copy to: Jerome M. Selvers, Esq.
Sonnenblick Parker & Selvers P.C.
4400 Route 9
South Freehold, New Jersey 07728
Telephone No.: (732) 431-1234
Fax No.: (732) 431-3994
Notices to Pledgee: Surge Components, Inc.
1016 Grand Avenue
Deer Park, New York 11729
Attn: Ira Levy
Telephone No. (631) 595-1818
Fax No.: (631) 242-6932
With a copy to: Elliot H. Lutzker, Esq.
Snow Becker Krauss P.C.
605 Third Avenue
New York, NY 10158
Telephone No. (212) 455-0322
Fax No. (212) 949-7052
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12. Pledgor acknowledges and agrees that Pledgee may assign, pledge or
transfer this Pledge Agreement and its rights hereunder and the assignee shall
be entitled to the performance of all of Pledgor's agreements and obligations
under this Pledge Agreement, and shall be entitled to enforce all the rights and
remedies of Pledgee under this Pledge Agreement, for the benefit of assignee, as
fully as if assignee were herein by name specifically given such rights and
remedies. Pledgor expressly agrees that it will assert no claims or defenses
that it may have against Pledgee against the assignee, except those specifically
available under this Pledge Agreement.
13. It is expressly intended, understood and agreed that this Pledge
Agreement, the Note and the Loan Documents are made and entered into for the
sole protection and benefit of Pledgee and Pledgor, and their respective
successors and assigns (but in the case of assigns of Pledgor, only to the
extent permitted hereunder), and no other person or persons shall have any right
of action hereunder or right to the loan proceeds at any time; that the loan
proceeds do not constitute a trust fund for the benefit of any third party; that
no third party shall under any circumstances be entitled to any equitable lien
on any undisbursed loan proceeds at any time; and that Pledgee shall have a lien
upon and right to direct application of any undisbursed loan proceeds as
additional security for this Pledge Agreement, the Note and the Loan Documents.
The relationship between Pledgor and Pledgee is solely that of lender and
borrower, and nothing contained herein, or in the Note or the Loan Documents,
shall in any manner be construed as making the parties hereto partners, joint
venturers or creating any other relationship other than lender and borrower.
14. All provisions of this Pledge Agreement shall be deemed valid and
enforceable to the extent permitted by law. Any provision or provisions of this
Pledge Agreement which are held unenforceable, invalid or contrary to law by a
court of competent jurisdiction, or the inclusion of which would affect the
validity or enforceability of this Pledge Agreement, shall be of no force or
effect, and in such event each and all of the remaining provisions of this
Pledge Agreement shall subsist and remain and be fully effective according to
the tenor of the Pledge Agreement as though such invalid, unenforceable or
unlawful provision or provisions were not included in this Pledge Agreement.
15. To the extent permitted by law, Pledgor hereby waives any and all
rights to require marshalling of assets by Pledgee.
16. This Pledge Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which taken together shall
constitute one complete document.
17. This Pledge Agreement and the rights and duties of the parties
hereunder, including matters of validity, performance and construction, shall be
governed by the law of the State of New York, without application of its
principles of conflicts of laws.
[REMAINDER OF TIES PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Pledge Agreement has been duly executed as of
the date first above written.
PLEDGOR:
GLOBAL DATATEL, INC., a Nevada corporation
By: /s/ Antonio Serato
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Name:
Title:
PLEDGEE:
SURGE COMPONENTS, INC., a New York corporation
By: /s/ Steven J. Lubman
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Name: Steven J. Lubman
Title: Vice President, Secretary
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