LOAN AGREEMENT
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DATE: December 1, 2003
BORROWER: Xxxxxxxxx & Team GmbH
ADDRESS: Xxxxxxxxxxxxxx Xxxxxxx 00, Xxxxxxxxx xx Xxxx, Xxxxxxx 60598
LENDER: Xxxxxxx Holdings
ADDRESS: 00 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxx, Xxxxxxx America
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Xxxxxxxxx & Team GmbH (hereinafter referred to as "Borrower") desires to
obtain a credit facility and other financial accommodations from Xxxxxxx
Holdings, a Belize company (hereinafter referred to as "SH" or "Lender",
collectively, the "Parties") and SH is willing to make such credit facility
available to Borrower on the following terms and conditions. Therefore, the
Parties agree as follows:
1. Definitions.
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1.1 Agreement. Shall mean and include this Loan Agreement, any
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concurrent or subsequent Rider hereto and any extensions, supplements,
amendments or modifications thereto.
1.2 Borrower's Books. Shall mean and include all of Borrower's books
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and records including, but not limited to, all customer lists and lists of
account debtors, all ledgers, records reflecting, summarizing or evidencing
Borrower's assets, accounts, business operations or financial condition,
computer programs, computer discs, computer printouts, and other computer
prepared information and computer equipment of any kind.
1.3 Closing. Shall mean the first date in which SH advances any funds
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to the Borrower.
1.4 Collateral. Shall mean all of the assets and equity interests in
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Borrower, or any form of equity interest into which it may be exchanged of
converted.
1.5 Credit Facility. Shall mean an aggregate loan to be
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unconditionally granted by SH to Borrower in the total guaranteed amount of Nine
Hundred Fifty Thousand United States Dollars ($950,000.00) in accordance with
the terms and conditions set forth in this Agreement and any Convertible
Promissory Note between the Parties (the "Promissory Note").
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1.6 SH's Costs. Shall mean and include: (i) filing, recording,
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publication and search fees incurred by SH relating to Borrower, all costs and
expenses incurred by SH in the enforcement of its rights and remedies under this
Agreement, or defending this agreement; (ii) long distance telephone and
facsimile charges; (iii) the expenses of field examiners; (iv) all expenses for
travel, lodging and food incurred by SH's personnel in collecting the Accounts
or realizing upon the Collateral; (v) all costs and expenses incurred in gaining
possession of, maintaining, handling, preserving, storing, repairing, shipping,
selling, preparing for sale and advertising to sell the Collateral, whether or
not a sale is consummated; (vi) reasonable attorney's fees and expenses incurred
by SH as provided for in this Agreement, including a reasonable fee for the
services of attorneys employed by SH for any purpose related to this Agreement
or the Obligations, including consultation, drafting documents, sending notices
or instituting, prosecuting or defending litigation or arbitration.
1.7 Loan Documents. Shall mean this Agreement, any Promissory Note,
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and any other agreements, instruments and documents evidencing, securing,
governing, guaranteeing or pertaining to the Credit Facility or the transactions
contemplated thereby.
1.8 Obligation. Shall mean all indebtedness of Borrower and each
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Person who hereafter becomes Borrower or successor to Borrower's rights, that is
now or hereafter owing to SH, pursuant to this Agreement or otherwise,
regardless whether such indebtedness is now existing or hereafter arising,
whether it is voluntary or involuntary, wither due or not, secured or unsecured,
absolute or contingent, liquidated or unliquidated, and whether it is for
principal, interest, fees, expenses, or otherwise, and regardless whether the
Person who is or hereafter becomes Borrower may be liable individually or
jointly with others, or whether recovery upon any such obligations may be or
hereafter become barred or otherwise unenforceable.
1.9 Person. Shall mean an individual, partnership, corporation,
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including a "business trust," limited liability company, joint stock company,
trust, unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
1.10 Term. Shall mean one (1) year from the earlier of the date of
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execution of this Agreement or the date of Closing,
2. The Credit Facility.
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2.1. SH shall lend, from time to time, to Borrower the aggregate sum
of $950,000.00 subject to the terms and conditions of this Agreement and any
Promissory Note.
2.2 Borrower shall be obligated to make payments of interest only
during the first twelve (12) months subsequent to the Closing, provided,
however, that Borrower is not in default under this Agreement.
2.3. The conditions precedent to each advance hereunder are that no
Event of Default hereunder has occurred nor is the effect thereof continuing,
and Borrower is in full, faithful and timely compliance with each and all of the
covenants, conditions, warranties, and representations, contained in the
Agreement and in every other agreement between SH and Borrower.
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2.4. Unless provided otherwise in any Promissory Note executed and
delivered by Borrower to SH in connection with this Agreement, all obligations
shall be due and payable no later than the earlier of (a) the last day of the
term (or renewal term if any) of this Agreement; (b) the day an Event of Default
occurs; and (c) the day the Agreement is terminated.
2.5 All Obligations shall bear interest, computed on the basis of a
360-day year for the actual days outstanding, at a rate of interest equal to
four percent (4%) per annum. Such interest shall be calculated as of the last
day of the previous month in which interest is due.
2.6 At any time during the first twelve (12) months subsequent to
Closing, Borrower shall incur no penalty for prepayment of outstanding principal
and interest.
2.7 SH shall render statements to Borrower of the Obligations,
including all principal, interest and SH's Costs owing, and such statements
shall be conclusively presumed to be correct and accurate and constitute an
account stated between Borrower and SH unless, within thirty (30) days after
receipt thereof by Borrower, Borrower notifies SH in writing specifying the
error or errors, if any, contained in any such statements.
2.8 Upon an Event of Default, and for as long as such Event of
Default or the consequences thereof continue, interest shall accrue on the
Obligations from and after such Event of Default at a rate of interest which is
four (4) percentage points greater than the rate then being charged.
3. Creation of Security Interest.
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3.1 Borrower grants to SH a first priority lien and security interest
in all assets and equity rights of Borrower.
3.2. Borrower shall execute and deliver to SH at any time or times
hereafter at the request of SH, Promissory Notes, financing statements, initial
financing statements, continuation statements, security agreements, mortgages,
assignments, capitalization schedules, certificates of title, affidavits,
reports, notices, schedules of accounts and fully comply with this Agreement
(collectively the "Loan Documents").
4. Indemnification. Borrower hereby indemnifies and agrees to hold harmless
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Lender, and its officers, directors, employees, accountants, attorneys, agents
and representatives (each an "Indemnified Person") from and against any and all
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liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
(collectively, the "Claims") which may be imposed on, incurred by, or asserted
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against, any Indemnified Person arising in connection with the Credit Facility,
the Collateral, or any of the transactions contemplated under this Agreement
(including without limitation, the enforcement of the Loan Documents and the
defense of any Indemnified Person's actions and/or inactions in connection with
the Loan Documents). WITHOUT LIMITATION, THE FOREGOING INDEMNITIES SHALL APPLY
TO EACH INDEMNIFIED PERSON WITH RESPECT TO ANY CLAIMS WHICH IN WHOLE OR IN PART
ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF SUCH AND/OR ANY OTHER
INDEMNIFIED PERSON, except to the limited extent the Claims against an
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Indemnified Person are proximately caused by such Indemnified Person's gross
negligence or willful misconduct. If Borrower or any third party ever alleges
such gross negligence or willful misconduct by any Indemnified Person, the
indemnification provided for in this Section shall nonetheless be paid upon
demand, subject to later adjustment or reimbursement, until such time as a court
of competent jurisdiction enters a final judgment as to the extent and effect of
the alleged gross negligence or willful misconduct. The indemnification provided
for in this Section shall survive the termination of this Agreement and shall
extend and continue to benefit each individual or entity who is or has at any
time been an Indemnified Person hereunder.
5. Representations and Warranties.
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5.1. From 120 days from the earlier of the date of the execution of
this Agreement or the Closing, and continuing until all Obligations have been
fully paid and satisfied, Borrower hereby warrants and represents that:
(a) If Borrower is a company, corporation or other valid
business entity, it is duly organized and is and all time hereinafter will be in
good standing under the laws of the country of its incorporation or registration
and is duly qualified and in good standing in every other country in which the
nature of its business requires such qualification;
(b) Borrower is the true and lawful owner of the Collateral and
has the rights, power and authority to transfer and grant a security interest
therein to SH;
(c) The execution, delivery and performance of this Agreement
and the other Loan Documents, and the consummation of the transactions
contemplated hereby and thereby, do not (i) conflict with, result in a violation
of, or constitute a default under (1) any provision of its organizational
documents (including amendments thereof) by-laws or other instrument binding
upon Borrower, (2) any law, governmental regulation, court decree or order
applicable to Borrower, or (3) any agreement, judgment, license, order or permit
applicable to or binding upon Borrower, (ii) require the consent, approval or
authorization of any third party, or (iii) result in or require the creation of
any lien, charge or encumbrance upon any assets or properties of Borrower or of
any person except as may be expressly contemplated in the Loan Documents.
(d) At Closing, or within 120 days subsequent to Closing,
Borrower shall obtain any and all requisite consents permitting this Agreement
and the transactions contemplated hereunder.
(e) There are no actions or proceedings pending by or against
Borrower in any court or administrative agency and Borrower has no knowledge of
any pending, threatened or imminent litigation, governmental investigation or
claim, complaint, action or prosecution involving Borrower, except as may have
been specifically disclosed in writing to SH and if any of the foregoing arise
during the term of this Agreement, Borrower shall immediately notify SH in
writing with respect thereto;
(f) All assessments and taxes whether real, personal or
otherwise due and payable by or imposed, levied, or assessed against Borrower or
any of its assets have been paid and shall hereafter be paid in full before
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delinquency. Borrower shall make due and timely payment or deposit of all taxes,
assessments or contributions required of it by law (and will execute and deliver
to SH on demand appropriate certificates attesting to the payment or deposit
thereof);
(g) With respect to the Collateral, SH's security interest
therein is now and shall hereafter at all times constitute a perfected, xxxxxx,
and first security interest in the Collateral and is not now and will not
hereafter become subordinate or junior to the security interest, lien,
encumbrance or claim of any Person; and
(h) All financial statements and information relating to
Borrower are true, complete and correct in all material respects and have been
prepared in accordance with generally accepted accounting principles
consistently applied, and there has not been any material adverse change in the
financial condition of Borrower since the last submission of such financial
information to SH.
5.2 Each warranty, representation and agreement contained in this
Agreement shall be automatically deemed repeated with each installment (if any)
under this Agreement and any Promissory Note, and shall be conclusively presumed
to have been relied upon by SH regardless of any investigation made or
information possessed by SH. The warranties, representations and agreements set
forth herein shall be cumulative and in addition to any other warranties,
representations and agreements which Borrower shall now or hereafter give, or
cause to be given to SH.
6. Affirmative Covenants.
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6.1 Until all Obligations are fully paid and satisfied, Borrower
will:
(a) At all times fully comply with all laws, rules, orders or
regulations pertaining to the conduct of its business.
(b) Maintain itself in good standing in all jurisdictions in
which Borrower is doing business, and at the request of SH, furnish to SH
evidence of its good standing in all such jurisdictions.
(c) Maintain Borrower's Books at the address(es) herein
provided.
(d) Notify SH, in writing, of any material adverse change in
Borrower's financial condition.
(e) Make timely payment or deposits of all taxes and assessments
required to be paid by Borrower and deliver to SH, as requested, evidence of
such payment or deposit.
(f) Keep the Collateral free from any lien, security interest or
encumbrance adverse to SH and defend, at its own expense, the Collateral and the
proceeds thereof against all claims and demands of all Persons at any time
claiming the same or any interest therein.
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(g) Promptly deliver to SH all documents and instruments
relating to the Collateral, as SH may request from time to time.
(h) On request of SH, execute and deliver to SH at all and all
additional documents, which SH may request from time to time to evidence the
advances made hereunder, or the security interest granted hereby, or effect the
transactions contemplated hereunder.
7. Negative Covenants.
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7.1. Until all Obligations are fully paid and satisfied, Borrower will
not, without the prior written consent of SH:
(a) Grant a security interest in the Collateral, or permit a
lien, claim or encumbrance to be imposed on any of the Collateral, or allow the
Collateral to be possessed by or under the control of any other Person;
(b) Permit any levy, or attachment to be made on any of
Borrower's assets;
(c) Permit any receiver, trustee, custodian, assignees for the
benefit of creditors or any other Person or entity having similar powers or
duties to be appointed or to take possession of any or all of Borrower's assets;
(d) Change its business structure, corporate identity or
structure, do business under any additional trade name, or liquidate, merge or
consolidate with or into any other business organization;
(e) Change it's corporate or trade name without providing SH
with thirty (30) days' prior written notice;
(f) Acquire any entity or purchase the stock or securities of
any entity;
(g) Permit any sale or disposition of a controlling interest in
Borrower or permit a change in the management of Borrower. For purposes of this
paragraph, "Controlling Interest" shall mean greater than 50% of the Borrower's
issued and outstanding equity interests;
(h) Enter into any transaction or incur any debts not in the
usual course of Borrower's business;
(i) Guarantee or otherwise become in any way liable with respect
to the obligations of any Person except by endorsement of instruments or items
of payment for deposit to the account of Borrower or which are transmitted or
turned over to SH on account of the Obligations;
(j) Make any distribution of Borrower's property or assets;
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(k) Make any advance, loan, contribution or payment of money
(other than compensation for personal service), goods or credit to, or guarantee
any obligation of any officer, shareholder or employee, or cause or permit any
such advance, loan, contribution or guarantee to be made by any subsidiary
corporation other than the guaranty executed in connection herewith with this
Agreement.
(l) Permit the sale, pledge or other transfer of any equity or
ownership interest in Borrower;
(m) Make any loan to any Person or entity;
8. Events of Default.
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8.1. The occurrence of any one or more of the following shall, at the
option of SH, constitute an event of default under this Agreement (each an
"Event of Default").
(a) Borrower fails to pay when due and payable or declared to be
due and payable, any of the Obligations (whether of principal, interest, taxes,
reimbursement or SH's Costs or otherwise);
(b) Borrower fails or neglects to comply with, perform, keep or
observe any term, provision, condition, or covenant contained in this Agreement,
or any other present or future agreement between Borrower and SH;
(c) Any representation, statement or report or certificate made
or delivered by Borrower, or any of its officers or agents (either individually
or as an officer or agent of Borrower), to SH proven to be untrue, inaccurate,
incomplete or incorrect in any material respect;
(d) There is a material impairment in the prospect of repayment
in the prospect of repayment of the Obligations or a material impairment in the
value of the collateral or the priority of SH's security interest in the
Collateral is contested;
(e) Any of Borrower's assets are attached, seized, or are levied
upon, and the same are not released, discharged or bonded against within twenty
(20) business days thereafter;
(f) Borrower is enjoined, restrained or in any way prevented by
court order from continuing to conduct all or any material part of its business
affairs and such order is not released within (20) business days of receipt of
notice thereof by Borrower;
(g) Borrower ceases normal business operations;
(h) A judgment or other claim becomes a lien or encumbrance upon
any or all of Borrower's assets and the same is not satisfied, dismissed or
bonded against within twenty (20) business days thereafter;
(i) Borrower makes any payment on account of indebtedness that
has been subordinated to the Obligations to SH, without SH's consent, or if any
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Person subordinating such indebtedness terminates or in any way limits his
subordination.
9. Cure Provisions. Should Borrower be in material breach of any provision of
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this Agreement, it shall have a thirty (30) day period to cure, after receipt of
written notice by SH of such breach, provided such breach is capable of cure.
The provisions of this paragraph shall not apply to payments of any Obligations,
which shall be due and payable, and which, if late, shall be deemed both a
default and an uncured default under this Agreement if not cured within fifteen
(15) days of being late.
10. SH's Rights and Remedies.
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10.1. Upon the occurrence of an Event of Default by Borrower under
this Agreement, SH may, at its election, without notice of its election and
without demand upon Borrower, do any one or more of the following, all of which
are authorized by Borrower:
(a) Declare any or all of the Obligations, whether evidenced by
note(s) or otherwise, immediately due and payable;
(b) Terminate this Agreement, but without affecting SH's rights
and security interests in the Collateral, and the Obligations;
(c) Cease making advances to or for the benefit of Borrower
under the Credit Facility or reduce the Credit Facility;
(d) Continue making advances to Borrower in such amounts as SH
may determine, in its sole discretion, without waiving any default by Borrower
under this Agreement;
(e) Exercise any and all of the rights accruing to a secured
party under any applicable laws.
(f) Require Borrower to assemble the Collateral, hold the same
in trust for SH's account and, at Borrower's expense, deliver the same to SH or
to a third party at a place or places to be designated by SH which is reasonably
convenient to the parties, or store the same in a warehouse in SH's name and
deliver to SH documents of title representing said Collateral;
(g) Enter, with or without process of law, and without further
permission of Borrower, any premises where the Collateral is or is believed by
SH to be located, using all necessary force to accomplish the same without
committing a breach of the peace (Borrower hereby waives all claims for damages
or otherwise due to, arising from or connected with such entry and/or seizure),
and: (i) take possession of said premises and of the Collateral located therein;
(ii) place a custodian in exclusive control of said premises and of any of the
Collateral located therein; (iii) remove from the premises the Collateral (and
any copied of Borrower's Books, materials and supplies) in any way relating to
the Collateral or useful by SH in enforcing its rights hereunder; (iv) remain
upon said premises and use the same (together with said Borrower's Books,
materials and supplies) for the purpose of collecting the Collateral and/or
preparing the Collateral for disposition and/or disposing of the Collateral;
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(h) Make (without any obligation to do so) any payment and take
such action as SH considers necessary or reasonable to protect or preserve the
Collateral or its security interest therein, including paying, purchasing,
contesting or compromising any encumbrance, charge or lien which, in the opinion
of SH, interferes with the enforcement of its security interests or the
liquidation or disposition of the Collateral;
(i) Sell at one or more public or private sales, lease or
otherwise dispose of the Collateral (regardless whether SH has taken possession
thereof or whether the Collateral is present at any such sale or disposition) in
its then condition, or after further manufacturing, processing or preparation
thereof (utilizing, in connection therewith, without charge or liability to SH
therefor, any of Borrower's assets), by means of one or more contracts or
transactions, for cash or on terms, in such manner and at such places (including
Borrower's premises) as is commercially reasonable, in the opinion of SH;
(j) Seek temporary or permanent injunctive relief without the
necessity of proving actual damages, as no remedy at law will provide adequate
relief to SH and, in this regard, the bond which SH may be required to post
shall be no more than $500.00; and
(k) Require Borrower to pay all of SH's Costs incurred in
connection with SH's enforcement and exercise of any of its rights and remedies
as herein provided, whether or not suit is commenced by SH;
10.2 Any deficiency that exists after disposition of the Collateral
as provided herein, shall be due and payable by Borrower upon demand, with any
excess to be paid by SH to Borrower
10.3 SH's rights and remedies under this Agreement and all other
agreements shall be cumulative and may be exercised simultaneously or
successively, in such order as SH shall determine. In addition, SH shall have
all other rights and remedies not inconsistent herewith as provided by law or in
equity. No exercise by SH of one right or remedy shall be deemed an election,
and no waiver by SH of any default on Borrower's part shall be deemed a
continuing waiver. No delay by SH shall constitute a waiver, election or
acquiescence by it.
10.4 In the Event of Default, Borrower does hereby irrevocably
designate, make, constitute and appoint SH and any agent designated by SH, as
Borrower's true and lawful attorney, with power to do the following in
Borrower's or SH's name and at Borrower's expense but without notice to
Borrower, and at such time or times (except as otherwise provided herein) as SH
may, in its sole election, determine:
(a) Endorse Borrower's name on any checks, notes, acceptances,
money orders, drafts or other forms of payment or security that may come into
SH's possession;
(b) Sign Borrower's name on any invoice, freight xxxx or xxxx of
lading relating to any Account, on any draft against an account debtor, on any
schedule assignment of accounts, verification of accounts or on any notice to
account debtors;
(c) Execute any other documents that may facilitate the
collection, liquidation or disposition of the Collateral.
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11. Waivers By Borrower.
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11.1. SH shall not be deemed to have waived any provision of this
Agreement, or any right or remedy, which it may have hereunder, or at law or
equity, unless such waiver is in writing, and signed by SH.
11.2. Borrower waives the right to direct the application of any
payments at any time or times received by SH on account of the Obligations and
Borrower agrees that SH shall have the continuing exclusive right to apply and
reapply such payments in any manner, as SH may deem advisable.
11.3. Except as otherwise provided for in this Agreement, Borrower
waives demand, protest, notice of protest, notice of default or dishonor, notice
of payment and nonpayment, notice of any default, nonpayment at maturity,
release, compromise, settlement, extension or renewal of any or all commercial
paper, accounts, documents, instruments, chattel paper and guaranties at any
time held by SH on which Borrower may in any way be liable.
11.4. Failure or delay by SH in exercising or enforcing any right,
power, privilege, lien, option or remedy hereunder shall not operate as a waiver
thereof and a waiver by SH of any default by Borrower under this Agreement shall
not be construed to create any right or expectation of future waiver of any
subsequent breach or default by Borrower under this Agreement whether of the
same or of a different nature.
12. Notices. Unless otherwise provided in this Agreement, all notices, demands
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or other communications to either party shall be in writing and shall be mailed,
telecopied or communicated by means of facsimile transmission (followed by a
mailed or delivered hard copy), or delivered by hand or courier service, at
their respective addresses set forth in this Agreement, or at such other
addresses as shall be designated by such party in a written notice to the other
party. All notices and other communications shall be deemed delivered and
effective when a record has been sent by telecopy or other facsimile
transmission, or upon receipt through the Internet, or upon hand delivery or
upon the third business day after deposit in a postal box if postage is prepaid,
and the notice properly addressed to the intended recipient.
13. Release. At such time as all Obligations shall have been fully paid and
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satisfied and Borrower executes a release acknowledging that Borrower does not
have any claims against SH and provides SH with an appropriate indemnity
indemnifying SH for any remittances for which Borrower has received credit and
which are not paid, SH shall release its security interest in the Collateral and
deliver to Borrower an appropriate termination statement.
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14. General Provisions.
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14.1. The parties intend and agree that their respective rights,
duties, powers, liabilities, obligations and discretions shall be performed,
carried out, discharged and exercised reasonably and in good faith.
14.2. Neither this Agreement nor any uncertainty or ambiguity herein
shall be construed or resolved against SH or Borrower, whether under any rule of
construction or otherwise; on the contrary, this Agreement has been reviewed by
all parties and shall be construed and interpreted according to the ordinary
meaning of the words used so as to fairly accomplish the purposes and intentions
of all parties hereto. When permitted by the context, the singular includes the
plural and vice versa.
14.3. The validity of this Agreement, its construction, interpretation
and enforcement, and the rights of the parties hereunder and concerning the
Collateral, shall be determined under and according to German Law, without
regard to principles of conflicts of laws.
14.4. In any litigation involving SH and Borrower, SH does hereby
irrevocably submit itself to the process, jurisdiction and venue of the courts
of Germany and without limiting the generality of the foregoing, hereby waives
and agrees not to assert by way of motion, defense or otherwise in any such
suit, action or proceeding any claim that Borrower is not personally subject to
the jurisdiction of such courts, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper.
14.5. The provisions of this Agreement are independent of and separate
from each other. If any provision hereof shall for any reason be held invalid or
unenforceable, it is the intent of the parties that such invalidity or
unenforceability of any other provision hereof and that this Agreement shall be
construed as if such invalid or unenforceable provision had never been contained
herein.
14.6. Article and section headings and numbers have been set forth
herein for convenience only; unless the contrary is compelled by the context,
everything contained in each section applies equally to this entire Agreement.
14.7. This Agreement cannot be changed or terminated orally. All
prior agreements, understandings, representations, warranties and negotiations,
if any, are merged into this Agreement.
14.8. SH shall have the right, without the consent of or notice to
Borrower to grant participation interests in the Credit Facility and in this
regard may provide the participant with any and all information with respect to
Borrower and the Credit Facility. In addition, SH may assign this Agreement and
its rights and duties hereunder at any time, without the consent of or notice to
Borrower. This Agreement shall inure to the benefit of SH, its successors and
assigns. Borrower may not assign this Agreement or any rights hereunder without
SH's prior written consent and any such assignment shall be void and of no
effect whatsoever. No consent to any assignment by SH shall, without the written
consent of SH, release Borrower or any guarantor of its Obligations to SH.
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14.9. This Agreement shall inure to the benefit of SH and any
successors or assigns of SH, including any participant in the Credit Facility.
This Agreement shall bind and inure to the benefit of the successors and assigns
of SH and shall bind all Persons who become bound as a debtor to this Agreement.
Borrower may not assign this Agreement or any rights hereunder without SH's
prior written consent and any prohibited assignment shall be absolutely void. No
consent to any assignment by SH shall release Borrower or any guarantor of its
Obligations to SH. SH may assign this Agreement and its rights and duties
hereunder, and if an assignment is made, Borrower shall render performance under
this Agreement to the assignee. Borrower waives and will not assert against any
assignee of SH any claims, defenses (except defenses which cannot be waived) or
set-offs which Borrower could assert against SH.
15. Rules of Construction.
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15.1. No reference to "proceeds" in this Loan Agreement authorizes
any sale, transfer or other disposition of the Collateral by the Borrower
without the written consent of SH.
15.2. "Includes" and "including" are not limiting.
15.3. "Or" is not exclusive.
15.4. "All" includes "any" and "any" includes "all."
15.5. "Material Impairment" for purposes of this Agreement includes
without limitation (i) Borrower sustains a net operating loss for twelve
consecutive months; and (ii) Borrower uses a substantial amount of funds from
the business for a non-business purpose.
NOTICE OF FINAL AGREEMENT
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THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES, AND THE SAME MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed at , as of the date first written above.
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XXXXXXX HOLDINGS, a Belize company
By:
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Title:
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[signatures continue on next page]
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XXXXXXXXX & TEAM, GMBH, a German company
By:
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Title:
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