COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
Exhibit 3
THIS
COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT (the "Agreement" as the same may
hereafter be amended and/or restated from time to time) is entered into
effective the 4th day
of May, 2009, by and between XXXXX-XX XXX (the "Secured
Party"), and THE AHNS 2009
DESCENDANTS TRUST, an inter vivos trust created under the laws of the
State of Maryland, XXXXX XXXX
(or her successor(s)-in-interest), Trustee (the "Debtor").
RECITALS
WHEREAS,
pursuant to the terms of the Assignment of Stock between the Debtor, as the
purchaser, and the Secured Party, as the seller, of even date herewith
("Transfer Agreement"), the Debtor has purchased and acquired from the Secured
Party Two Million Six Hundred Thousand (2,600,000) shares of stock in Rexahn
Pharmaceuticals, Inc. (the “Company”), for which interest the Debtor has agreed
to pay to the Secured Party the sum of One
Million Seven Hundred Sixty-Eight and 00/100 Dollars ($1,768,000.00)
as the total purchase price. The Debtor's obligation is evidenced by a secured
promissory note issued by the Debtor, as the borrower, to the Secured Party, as
the lender, of even date herewith having an original principal amount of
One Million
Five Hundred Ninety-One Thousand Two Hundred and 00/100 Dollars
($1,591,200.00) (the "Note") as the same may be amended and/or restated from
time to time); and
WHEREAS,
as an express condition and material inducement to the Secured Party entering
into the Transfer Agreement and to accept the Note, the Debtor has agreed to
pledge and grant to the Secured Party a security interest in the Two Million Six
Hundred Thousand (2,600,000) shares of stock in the Company as collateral to
secure the prompt and punctual payment of: (i) all principal, interest, late
fees and costs of collection due or to come due under the Note, as well as all
future advances that may be made by the Secured Party to the Borrower in the
Secured Party's sole discretion, as well as all interest, late fees and costs of
collection related thereto whether or not any such future advances are
represented by an instrument; and (ii) all fees and costs that may be incurred
by the Secured Party under this Agreement (collectively, the "Indebtedness") and
the prompt and punctual performance and compliance by the Debtor of all the
terms and provisions of this Agreement, all upon the terms and conditions set
forth below.
NOW,
THEREFORE, in consideration of (i) the foregoing recitals which are incorporated
herein as a substantive part of this Agreement for all purposes, (ii) the mutual
covenants herein contained, and (iii) other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by each party, it is agreed as
follows:
1.
Some of the terms used herein with the initial letter(s)
capitalized shall have the meaning provided herein, or if any such terms are not
defined herein but any such term is defined in the governing documents of the
Company as amended and/or restated from time to time ("governing documents”),
then such terms shall have the meaning as provided therein, unless the context
otherwise requires.
2.
The Debtor hereby irrevocably pledges,
assigns, conveys and grants to the Secured Party a continuing security interest
in accordance with the Uniform Commercial Code, in and to all of the Two Million
Six Hundred Thousand (2,600,000) shares of stock in the Company (the "Pledged
Interest"), including without limitation; (i) all of the Debtor's rights arising
under the governing documents; (ii) all rights of the Debtor to receive any
distributions from the Company; and (iii) all other rights, benefits,
prerogatives and privileges of the Debtor arising under the governing documents
or by law incidental to or appurtenant to the Pledged Interest, together with
any and all subscription rights or options issued in connection with such
Pledged Interest, or any other property received on account of, or in connection
with, or in exchange for, such Pledged Interest to which the Debtor (as the
beneficial holder) is or may hereafter become entitled to receive, and all cash
and noncash proceeds of the foregoing (all such property being hereafter
collectively called the "Collateral") to secure the full, prompt and punctual
payment when due of all the Indebtedness and the full, prompt and punctual
performance by the Debtor of all the terms and provisions of this Agreement. It
is intended hereby that the definition of the terms "Pledged Interest" and
"Collateral" shall be consistently construed and interpreted to afford the
broadest meaning and coverage possible to protect the interests of the Secured
Party.
3.
The parties acknowledge that the Secured Party may, but
is not required to, at any time in the Secured Party's discretion take physical
possession of any certificate (or other instruments) that may evidence the
Pledged Interest upon prior notice to the Debtor. In any such circumstance, the
Debtor shall immediately furnish the Secured Party with all documents evidencing
the Pledged Interest as well as a separate assignment (or equivalent document)
duly endorsed in form as required by counsel for the Secured Party to transfer
title thereto. If at any time the Secured Party has physical possession of the
Pledged Interest and the Debtor shall thereafter become entitled to receive or
shall receive, in connection with any of the Pledged Interest, a distribution
payable in money or property, including securities, then in any such case, the
Debtor shall accept same as agent of the Secured Party, in trust for the Secured
Party, and shall immediately deliver such distribution to the Secured Party in
the exact form received with appropriate assignments (or equivalent documents)
duly executed in blank, such distribution, assignments and documents to be held
by the Secured Party, subject to the terms of this Agreement, as part of the
Collateral.
4.
At any time the Secured Party may, at its option,
have any part or all of the Pledged Interest registered in its name or that of
its nominee, and the Debtor and the Company hereby covenant that the Company,
upon the Secured Party's request, will effect such registration. If that shall
be done prior to the occurrence of Default (as hereafter defined), the Debtor
shall nevertheless retain all voting rights (if any) with respect to the Pledged
Interest, subject to any other limitations or restrictions contained in this
Agreement. Immediately and without further notice upon the occurrence of
Default, whether or not the Pledged Interest shall have been registered in the
name of the Secured Party or its nominee, the Secured Party or its nominees
shall have, with respect to the Pledged Interest:
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(a) The
right to exercise all voting rights, if applicable.
(b) With
respect to all of the Pledged Interest, all other rights, including conversion,
exchange, subscription, or other rights, privileges, or options pertaining
thereto as if the Secured Party were the absolute owner; the Secured Party shall
have no duty, however, to exercise any of the rights, privileges, or options
described or referred to in this Section 4 and shall
not be responsible for any failure to do so or delay in so doing; and the
Secured Party may by written notice to the Debtor relinquish, either partially
or completely in accordance with any terms or conditions the Secured Party may
set forth in such notice, any or all voting rights the Secured Party may acquire
pursuant to this Section 4.
5.
Absent Default, any and all distributions payable by the
Company to the Debtor on account of the Pledged Interest may be retained by the
Debtor. Any and all other distributions shall be paid over to the Secured Party
to be applied to the Indebtedness in such order as it shall determine.
Notwithstanding the foregoing, unless and until the Secured Party exercises its
rights hereunder and becomes the actual owner of the Pledged Interest, the
Debtor shall be solely responsible for payment of any and all income or other
taxes attributable to the Pledged Interest, as well as any interest, penalties
or other additions to tax, and shall indemnify and hold harmless the Secured
Party therefrom. After the Secured Party becomes the actual owner of the Pledged
Interest, the Secured Party shall be solely responsible for payment of any and
all income and other taxes attributable to the Pledged Interest.
6.
The Debtor represents and warrants to the
Secured Party that:
(a) The
Debtor is the legal and beneficial owner of Two Million Six Hundred Thousand
(2,600,000) shares of stock in the Company.
(b) The
Pledged Interest owned by the Debtor has been duly and validly issued, is fully
paid for and nonassessable, and is held free and clear of any pledge, mortgage,
hypothecation, lien, charge, encumbrance, or security interest, except the
security interest created under this Agreement.
(c) Upon
filing of UCC financing statements with the State of Maryland, this Agreement
shall create a valid first lien upon and perfected security interest in the
Pledged Interest owned by the Debtor and in the proceeds
thereof.
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(d) The
Debtor has the full legal right to enter into this Agreement and perform all of
its terms and conditions, and this Agreement represents a valid and binding
obligation of the Debtor which is enforceable against the Debtor in accordance
with its terms.
(e) No
consent or approval of the Company or any third party is necessary to effect the
pledge, assignment and/or creation of the security interest contemplated hereby,
or if required, has been duly obtained.
(f) The
execution and delivery of this Agreement, and the performance of its terms, will
not violate or constitute a default under the terms of any agreement, indenture
or other instrument, license, judgment, decree, order, law, statute, ordinance,
or other governmental rule or regulation applicable to the Debtor or any of its
property.
(g) The
Pledged Interest is not subject to any purchase option or right in favor of any
other person (including, but not limited to, the Company or any other
Stockholder of the Company) or any assignment, buy-sell or similar type of
agreement other than as provided in the governing documents.
7.
The Debtor hereby
covenants and agrees that, until all of the Indebtedness has been satisfied in
full, the Debtor will:
(a) Not
sell, convey, or otherwise dispose of any of the Pledged Interest or any
interest therein owned by the Debtor or create, incur, or permit to exist any
pledge, mortgage, lien, charge, encumbrance, or any security interest whatsoever
in or with respect to any of the Pledged Interest owned by Debtor or its
proceeds, other than that created hereby.
(b) Not
vote, consent to or authorize any amendment to the governing documents without
first securing the Secured Party's prior written consent, the granting of which
shall be in the Secured Party's discretion.
(c) Promptly
deliver to the Secured Party all written notices received by the Debtor with
respect to the Pledged Interest.
(d) Provide
the Secured Party with such information concerning the Company, its business
and/or finances as the Secured Party may reasonably request, provided that the
Debtor either has possession of such information or has reasonable access to
such information.
(e) Execute
and deliver to the Secured Party within five (5) business days after request
such UCC Financing Statements and/or other papers or instruments which the
Secured Party may reasonably request in order to perfect or otherwise protect
the security interest created hereby, and pay or reimburse the Secured Party
upon demand for any and all filing fees, recordation taxes or other sums of
money required to be expended to record same.
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(f) Perform
and observe all of the terms and provisions of the governing documents to be
performed or observed by it as a Stockholder of the Company and take all steps
or measures to enforce its rights as a Stockholder of the Company under the
governing documents or by law.
(g) Permit
the Secured Party to discuss the Company's affairs, finances and accounts with
any officer or director of the Company.
8.
The Debtor shall be in default
under this Agreement for all purposes ("Default") upon the occurrence of any of
the following: (i) nonpayment when due of any of the Indebtedness taking into
account any separate period allowed for cure under the Note; (ii) any other
uncured default under the Note or under the terms of any other instrument or
document evidencing, guarantying or otherwise securing the Indebtedness or any
part thereof; (iii) any breach or noncompliance by the Debtor with the
provisions of this Agreement, provided (a) written notice to such effect shall
have been sent by the Secured Party to the Debtor, (b) the Debtor shall have
been given a period of ten (10) days from the date of receipt of such notice to
cure such breach or noncompliance within such ten (10) day period, and (c) the
Debtor shall have failed to cure such breach or non-compliance, and provided
further that the Debtor shall not be entitled to cure more than two (2) such
occurrences in any consecutive twelve (12) month period; and (iv) any breach or
noncompliance by the Company with the provisions of this Agreement applicable to
it, provided (a) written notice of such breach or non-compliance shall have been
sent by the Secured Party to both the Debtor and the Company, (b) the Company
shall have been given a period of ten (10) days from the date of receipt of such
notice to cure such breach or noncompliance, and (c) the Company shall have
failed to cure such breach or non-compliance within such ten (10) day period,
and provided further that the Company shall not be entitled to cure more than
two (2) such occurrences in any consecutive twelve (12) month
period.
9.
Upon Default, the Secured Party shall
have all rights and remedies as a secured creditor under the Uniform Commercial
Code with respect to the Collateral. Without limitation thereon, the Secured
Party is authorized and shall have the right to: (i) declare all outstanding
principal and accrued but unpaid interest under the Note or under any item
constituting the Indebtedness to be immediately due and payable and the same
shall thereupon become immediately due and payable without presentment, demand
for payment, protest or notice of any kind, all of which are hereby expressly
waived; (ii) transfer any part or all the Collateral into the name of the
Secured Party or its nominee; (iii) take control of any of the Collateral; (iv)
receive any distributions or other proceeds paid with respect to the Collateral;
and (v) sell all or any part or portion of the Collateral which the Secured
Party, in its sole and absolute discretion, determines. The Secured Party may
require the Company to pay to the Secured Party all distributions to which the
Debtor would otherwise be entitled, and the Company agrees to make such payments
directly to the Secured Party. Further and without limiting the foregoing, the
Secured Party or any assignee of the Secured Party shall have the right, at its
option and discretion, to become a Stockholder of the Company in the stead of
the Debtor and to exercise all rights of a Stockholder in the Company. This
Agreement shall not relieve the Debtor of any of its obligations or duties as a
Stockholder of the Company under the governing documents or by law. The Secured
Party does not assume and shall not be responsible for any obligations or
liabilities of the Debtor, whether arising under the governing documents or
otherwise, unless the Secured Party becomes a substituted Stockholder of the
Company and assumes those liabilities and obligations in writing. The Debtor
shall indemnify the Secured Party against all claims arising out of or connected
with the Company or its business or affairs.
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10. Upon
the occurrence of Default, the Secured Party, without demand of performance or
other demand, advertisement, or notice of any kind to or upon the Debtor or any
other person, all of which are, to the extent permitted by law, expressly waived
except notice of the time and place of any public or private sale, may forthwith
take possession of the Collateral if not already in its possession and/or
realize upon the Collateral or any part thereof or interest therein, or agree to
do so, in one or more parcels at public or private sale or sales, at any
exchange, broker's board, or at any of the Secured Party's offices or elsewhere,
at such price and on such terms - including without limitation, a requirement
that any purchaser of all or any part of the Collateral purchase same for
investment purposes only and without any intention to make distribution thereof
- as it may deem best, for cash or on credit, or for future delivery without
assumption of any credit risk, with the right to the Secured Party or any
purchaser to purchase upon any such sale the whole or any part of the Collateral
free of any right or equity of redemption in the Debtor, which right or equity
is hereby expressly waived and released. The Debtor shall reimburse the Secured
Party upon demand for all costs incurred by the Secured Party in realizing upon
the Collateral or enforcing this Agreement, which sums shall be considered part
of the Indebtedness secured hereby. Except as may be otherwise specifically
provided in this Agreement, all Collateral and proceeds of the Collateral coming
into the Secured Party's possession may be applied by the Secured Party to any
of the Indebtedness, whether matured or unmatured, as the Secured Party shall
determine in its sole but reasonable discretion. Secured Party may defer the
application of non-cash proceeds of the Collateral to the Indebtedness until
cash proceeds are actually received by the Secured Party.
11. Notwithstanding
the foregoing, the Debtor recognizes that the Secured Party may be unable to
effect a public sale of all or a part of the Collateral and may be compelled or
deem it best to resort to one or more private sales to a restricted group of
purchasers who will be obligated to agree, among other things, to acquire the
Collateral for their own account, for investment purposes only and not with a
view to the distribution or resale thereof. The Debtor acknowledges that any
private sales may be at prices and on terms less favorable than those of public
sales, and agrees that these private sales shall be deemed to have been made in
a commercially reasonable manner and that the Secured Party has no obligation to
delay sale of any the Collateral to permit the Company to register the
Collateral for public sale under any federal or state securities
law.
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12. The
Debtor shall at any time, and from time to time, execute and deliver upon the
written request of the Secured Party such further documents and do such further
acts and things as the Secured Party may reasonably request to effect the
purposes of this Agreement. The Debtor hereby authorizes the Secured Party to
file UCC Financing Statements and/or other papers or instruments which the
Secured Party may reasonably request in order to perfect or otherwise protect
the security interest created hereby and pay or reimburse the Secured Party upon
demand for any and all filing fees, recordation taxes or other sums of money
required to be expended to record same. The Debtor agrees to pay to the Secured
Party on demand (i) the amount of all expenses paid or incurred by the Secured
Party in consulting with counsel concerning any of the Secured Party's rights
hereunder, under the Note or under applicable law, (ii) all expenses, including
attorneys' fees and court costs, paid or incurred by the Secured Party in
protecting, exercising or enforcing any of its rights hereunder, under the Note
or under applicable law, together with (iii) interest on all such amounts at the
highest rate and calculated in the manner provided in the Note, all of which
shall be considered part of the Indebtedness secured hereby. The provisions of
this subsection shall survive the termination of this Agreement and the Secured
Party's security interest hereunder and the payment of all
Indebtedness.
13. Upon
the satisfaction in full of all Indebtedness and the satisfaction of all
additional costs and expenses of the Secured Party as provided herein, this
Agreement shall terminate and the lien and security interest of the Secured
Party shall cease.
14. Beyond
the exercise of reasonable care to assure the safe custody of any of the
Collateral while in the physical possession of the Secured Party, the Secured
Party shall have no duty or liability to preserve rights pertaining thereto and
shall be relieved of all responsibility for the Collateral upon surrendering it
or tendering surrender of it to the Debtor. The Secured Party shall have no
liability or duty, either before or after the occurrence of Default, on account
of loss of or damage to the Collateral, (i) to collect or enforce any of its
rights against the Collateral, (ii) to collect any income or distributions
accruing on the Collateral, or (iii) to preserve rights against account debtors
or other parties with prior interests in the Collateral. If the Secured Party
actually receives any notices requiring action with respect to the Collateral in
its possession, the Secured Party shall take reasonable steps to forward such
notices to the Debtor. The Debtor is solely responsible for responding to
notices concerning, the Collateral, voting the Collateral, and exercising
rights, options and calls with respect to, and conversions of, the Collateral
where such action is otherwise permitted under the terms of this
Agreement. The Secured Party's sole responsibility is to take such
action as is reasonably requested by the Debtor in writing; however, the Secured
Party is not responsible to take any action that, in its judgment, would
adversely affect the value of the Collateral as security. While the Secured
Party is not required or obligated to take any actions to preserve and maintain
the Collateral, the Debtor authorizes the Secured Party to take any such actions
that the Secured Party, in its discretion, determines are necessary or
appropriate to preserve and maintain the Collateral.
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15. No
course of dealing between the Debtor and the Secured Party, or any failure to
exercise, or any delay in exercising, any right, power, or privilege of the
Secured Party hereunder or under the Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power, or privilege hereunder
or thereunder preclude any other or further exercise thereof.
16. Any
notice, request or other communication in connection with this Agreement shall
be in writing and, if sent by registered or certified mail, shall be deemed to
have been given when received by the party to whom directed, or if sent by mail
but not registered or certified, shall be deemed to have been given three (3)
business days after the date deposited in the mail, postage prepaid, provided
that any such notice or communication shall be addressed to a party hereto as
provided in the Company's records (or at such other address as such party shall
specify in writing to the other parties hereto). Notwithstanding anything to the
contrary, all notices and demands for payment from the Secured Party actually
received in writing by the Debtor shall be considered to be effective upon
receipt thereof by the Debtor regardless of the procedure or method utilized to
accomplish delivery thereof to the Debtor.
17. The
rights, powers and remedies given to the Secured Party under this Agreement
shall be in addition to all rights, powers and remedies afforded to the Secured
Party by virtue of the Note, any of the other security documents, or by law, all
of which shall be cumulative. Any forbearance, delay or failure by the Secured
Party in exercising any right, power or remedy hereunder shall not be deemed to
be a waiver of such right, power or remedy, nor shall any such forbearance,
delay or failure preclude future the exercise of any such right, power or
remedy.
18. The
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the respective personal and legal representatives, heirs and
successors of the parties, as the case may be. The term "Secured Party" when
used herein shall include reference to any subsequent holder or taker of the
Note if he, she or it is also assigned or transferred the rights of the holder
to the Collateral
19. This
Agreement may be executed in two or more counterparts and/or with one or more
signature pages and/or at different times, all of which together shall
constitute one and the same instrument effective as of the date first set forth
above.
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20. Whenever
under the terms of this Agreement the Secured Party is permitted or required to
exercise its judgment or discretion as to any matter, then such matter shall be
decided in the sole, absolute and subjective discretion of the Secured Party to
the fullest extent permitted by law unless otherwise provided to the contrary in
this Agreement.
21. The
Company shall be entitled to rely conclusively upon the provisions of this
Agreement as to the rights of the Secured Party with respect to the Collateral
and shall be fully protected in dealing with the Secured Party in the manner
permitted hereby.
22. Notwithstanding
any other provision of this Agreement to the contrary, until such time as the
Secured Party or its assignee acquires the Pledged Interest on or after Default,
neither the Secured Party nor its assignee shall be considered a Stockholder of
the Company for any purpose, it being acknowledged that the security interest
granted to the Secured Party hereby is intended solely as a collateral
assignment as security for the Indebtedness.
23. The
Debtor hereby waives, to the extent the same may be waived under applicable law:
(a) notice of acceptance of this Agreement; (b) all claims, causes of action and
rights of the Debtor against the Secured Party on account of actions taken or
not taken by the Secured Party in the exercise of the Secured Party's rights or
remedies hereunder, under the Note or under applicable law; (c) all claims of
the Debtor for failure of the Secured Party to comply with any requirement of
applicable law relating to enforcement of the Secured Party's rights or remedies
hereunder, under the Note or under applicable law; (d) all rights of redemption
of the Debtor with respect to the Collateral; (e) in the event the Secured Party
seeks to repossess any or all of the Collateral by judicial proceedings, any
bond(s) or demand(s) for possession which otherwise may be necessary or
required; (f) presentment, demand for payment, protest and notice of non-payment
and all exemptions; (g) any and all other notices or demands which by applicable
law must be given to or made upon the Debtor by the Secured Party; (h)
settlement, compromise or release of the obligations of any person primarily or
secondarily liable upon any of the Indebtedness; (i) all rights of the Debtor to
demand that the Secured Party release account debtors from further obligation to
the Secured Party; and (j) substitution, impairment, exchange or release of any
Collateral for any of the Indebtedness. The Debtor agrees that the Secured Party
may exercise any or all of its rights and/or remedies hereunder, under the Note
and under applicable law without resorting to and without regard to any
Collateral or sources of liability with respect to any of the
Indebtedness.
24. The
performance and construction of this Agreement shall be governed by the internal
laws of the State of Maryland. The Debtor agrees that any suit, action or
proceeding instituted against the Debtor with respect to any of the
Indebtedness, the Collateral, this Agreement or the Note may be brought in any
court of competent jurisdiction (state or federal) located in the State of
Maryland. By its execution of this Agreement, the Debtor hereby
irrevocably waives any objection and any right of immunity in any legal
proceeding, including actions in execution of any judgments arising from any
such legal proceeding, on the ground of venue, the convenience of the forum or
the jurisdiction of such courts. The Debtor hereby irrevocably
accepts and submits to the jurisdiction of the aforesaid courts in any such
suit, action or proceeding.
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25. If
any term, provision or condition, or any part thereof, of this Agreement shall
for any reason be found or held invalid or unenforceable by any court or
governmental agency of competent jurisdiction, such invalidity or
unenforceability shall not affect the remainder of such term, provision or
condition nor any other term, provision or condition, and this Agreement shall
survive and be construed as if such invalid or unenforceable term, provision or
condition had not been contained therein.
26. Without
limiting the other rights and remedies of the Secured Party hereunder, the
Debtor hereby irrevocably appoints the Secured Party as the Debtor's
attorney-in-fact (which appointment is coupled with an interest), with power of
substitution, to do any of the following at the time of or at any time after the
occurrence of Default, in the name of the Debtor or in the name the Secured
Party, for the use and benefit of the Secured Party, but at the cost and expense
of the Debtor, and without notice to the Debtor: (i) exercise all ownership
rights with respect to the Collateral and to sell the Debtor's interest in the
Collateral; (ii) notify the Company to make payment of any distributions with
respect to the Collateral directly to the Secured Party and take control of the
cash and noncash proceeds of the Collateral; (iii) compromise, extend or renew
any of the Collateral or deal with the same as the Secured Party may deem
advisable; (iv) release, exchange, make substitutes for, or surrender all or any
part of the Collateral; (v) demand, collect, receive for, and give renewals,
extensions, discharges, and releases of any of the Collateral; (vi) institute
and prosecute legal and equitable proceedings to enforce the collection of, or
realize upon, any of the Collateral; (vii) settle, renew, extend, compromise,
compound, exchange, or adjust claims with respect to any of the Collateral or
any legal proceedings brought with respect thereto; (viii) endorse the name of
the Debtor upon any items of payment relating to the Collateral or upon any
proof of claim in bankruptcy against the Company; and (ix) execute any
appropriate amendments to the governing documents in order to protect and
preserve the Secured Party's interests in the Collateral or otherwise carry out
the provisions of this Agreement.
27. THE DEBTOR HEREBY (A) COVENANTS AND
AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND
(B) WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE SECURED PARTY
AND THE DEBTOR MAY BE PARTIES, ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY
PERTAINING TO THIS AGREEMENT, THE NOTE AND/OR ANY TRANSACTIONS, OCCURRENCES,
COMMUNICATIONS, OR UNDERSTANDINGS (OR THE LACK OF ANY OF THE FOREGOING) RELATING
IN ANY WAY TO A DEBTOR-CREDITOR RELATIONSHIP BETWEEN THE PARTIES. IT IS
UNDERSTOOD AND AGREED THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF
ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS
AGAINST PARTIES WHO ARE NOT PARTIES TO THIS AGREEMENT. THIS WAIVER OF JURY TRIAL
IS SEPARATELY GIVEN, KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE DEBTOR,
AND THE DEBTOR HEREBY AGREES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE
BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY
WAY MODIFY OR NULLIFY ITS EFFECT. THE SECURED PARTY IS HEREBY AUTHORIZED TO
SUBMIT THIS AGREEMENT TO ANY COURT HAVING JURISDICTION OVER THE SUBJECT MATTER
AND THE DEBTOR SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF SUCH WAIVER OF RIGHT TO
TRIAL BY JURY. THE DEBTOR REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED
IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND/OR THAT
IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
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IN
WITNESS WHEREOF, the parties have each executed this Agreement as of the day and
year first above written.
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Debtor:
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THE AHNS 2009 DESCENDANTS
TRUST, u/a/d the
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29th
day of April, 2009
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| /s/ Xxxxx Xxxx | ||
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by:
XXXXX XXXX, Trustee
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Secured
Party:
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XXXXX-XX
XXX
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| /s/ Xxxxx-Xx Ahn | ||
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