E-175
Exhibit No. 10
IBF VI - Guaranteed Income Fund
Form SB-2
LOAN AGREEMENT
LOAN AGREEMENT (hereinafter referred to as "the Agreement"),
made as of this 10th day of November, 1998 between [name]
(hereinafter referred to as "Borrower"), having an offices at
000 Xxxxx Xxxx Xxxx Xxxx, Xxx Xxxxxx, XX, 00000 and InterBank
Funding Corporation, (hereinafter referred to as "Lender"), a
Delaware corporation having an office at 0000 Xxxxxxxxxxx Xxxxxx,
X. X., Xxxxxxxxxx, D. C. 20009-1137.
WITNESSETH:
The Borrower desires to borrow and the Lender desires to
lend to Borrower, the principal amount of up to Eight Hundred
Forty Thousand, and 00/100 Dollars ($840,000), pursuant to the
terms of this Agreement.
NOW THEREFORE, the parties hereto agree as follows:
Article I
The Loan
Section 1.01 Loans. Lender agrees, upon the terms, and
subject to the conditions hereof, to make advances to the
Borrower up to the sum of Eight Hundred Forty Thousand, and
no/100 Dollars ($840,000), (the amount so advanced, including
interest and all other costs and obligations pertaining thereto,
hereinafter referred to as the "Loan"). The Loan shall be
evidenced by a Promissory Note of even date herewith in the face
amount of Eight Hundred Forty Thousand, and no/100 Dollars
($840,000), (hereinafter referred to as the "Note").
Section 1.02 N/A
Section 1.03 N/A
Section 1.04 Commitment Fee. A commitment fee equal to
Eighty Five Thousand and no dollars will be due at the time of
the closing of the loan; additional commitment fees will be due
upon the granting of further extensions, which is at the sole
discretion of the Lender.
Article II
Representations and Covenants
Section 2.01 Representations. The Borrower represents
and warrants to the Lender that :
(a) The Borrower has the power and authority to execute,
deliver and perform this Agreement, and each of the other
documents executed in connection therewith (collectively, the
"Loan Documents") to own its properties and to carry on its
business as now conducted;
(b) The execution, delivery and performance of the Loan
Documents (i) have been duly authorized by all requisite action
of the Borrower, and (ii) does not violate any provision of law,
any order of any court or other agency, or any agreement to which
the Borrower is a party or by which the Borrower is bound;
(c) As of the date hereof, there are no actions, suits, or
proceedings before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality pending against the Borrower which if determined
adversely to the Borrower, would have a material effect on the
Borrower;
(d) No Event of Default has occurred under this Agreement
and no default has occurred under any of the other Loan
Documents;
(e) The Borrower makes no claim that the terms of the Note,
including without limitation the interest rate thereon, nor
anything contained herein is usurious nor that there exists any
offset, deduction or defense with respect to the Borrower's
obligations under the Loan Documents;
(f) There are no outstanding judgments against the Borrower
which have not been paid;
(g) There are no impediments to the full and complete
performance by the Borrower hereunder or under any of the Loan
Documents.
Section 2.02 Certain Covenants. The Borrower covenants
and agrees that so long as this Agreement shall remain in effect
or any principal of or interest on said Loan shall be unpaid, to:
(a) Pay all sums due and owing under the Note pursuant to
its terms;
(b) Give prompt notice to the Lender of (i) any proceedings
of which the Borrower has notice instituted by or against the
Borrower, and (ii) any other action, event or condition of any
nature which the management of the Borrower reasonably believes
could have, lead to, or result in a material adverse effect upon
the business, assets of financial condition of the Borrower;
(c) Refrain from selling, assigning, mortgaging, pledging,
granting or permitting any security interest, lien or
encumbrances of any nature in any amount to exist with respect to
any of the Borrower's accounts receivable or inventory, except
where such sale, assignment, security interest, lien or
encumbrance is for the benefit of the Lender.
(d) Provide the Lender on or before the 10th day of each
month Borrower's financial statements, and providing such other
information, including interim financial statements, concerning
the Borrower's business affairs and financial condition as the
Lender may from time to time request;
(e) Not incur any additional indebtedness except, in the
ordinary course of business, with customary time payment
arrangements with vendors and suppliers; and
(f) Pay all sums that may be necessary to be paid in order
to enforce the Note and to enforce and/or to record any agreement
or any other documentation executed and delivered in connection
with the Note, including but not limited to, this Agreement,
whether such sums be in the nature of recording fees, mortgage
tax or any other expense in connection with such recording.
Section 2.03 Negative Pledge Covenants. The Borrower
pledges, covenants and agrees that so long as this Agreement
shall remain in effect or the principal of or interest on the
Loan shall remain unpaid it shall not, without the prior written
consent of the Lender, do any of the following :
(a) Sell, transfer or otherwise convey, either voluntarily
or involuntarily, all or any substantial portion of its business
or assets or any interest or estate therein;
(b) Suffer or permit any mechanics' or other statutory lien
which is filed against any of its assets to remain undischarged
or not bonded for a period exceeding sixty (60) days beyond the
filing date thereof.
Article III
Voluntary Prepayments
Section 3.1 Voluntary Prepayments. Borrower shall have
the right, without payment of any premium or penalty, to make
total or partial prepayments on the Note on the last day of any
month, provided Borrower has given Lender not less than ten (10)
business days prior written notice of its intention to do so.
Article IV
Collateral
Section 4.1 Collateral.
a.) Borrower shall execute and deliver a Security Agreement
(the "Security Agreement") granting Lender a security interest in
all of Borrower's ownership interest in Preferred Pension
Administrators.
Article V
Renewal Option
Section 5.1 Renewal Option. Borrower, upon five (5)
business days advance notice, may apply to Lender for an
extension. The extension shall be for a term of no more than one
hundred eighty (180) days, and shall otherwise be on the same
terms and conditions, and with the same security, as the Loan.
The extension will be made only at the sole discretion of the
Lender and provided that all of the following conditions are met:
(a) Borrower is not at the time of the request to extend in
default hereunder
or under the Note:
(b) Borrower has furnished timely the reports as set forth
in Section 2.02,
Paragraph (d);
(c) All sums then due Lender have been paid.
Article VI
Default
Section 6.01 Event of Default. Each of the following
shall constitute an "Event of Default" under this Agreement :
(a) If any representation or warranty made in connection
with this Agreement shall prove to be incorrect in any material
respect;
(b) The failure to make any payment of principal or
interest under the Note on or before the due date thereof;
(c) A default in respect of any liabilities or obligations
(present or future, absolute or contingent, secured or unsecured,
matured or unmatured, joint or several, original or acquired) of
the Borrower, or any of its affiliates, to the Lender or any of
its affiliates, after the expiration of any applicable grace,
notice or cure period;
(d) The admission (whether in writing or otherwise) by
Borrower of its inability to pay its debts generally as they
become due;
(e) The commencement by the Borrower of a voluntary case
(or other proceeding) under the Federal Bankruptcy Code, as now
constituted or hereafter amended, or under any other applicable
foreign or state bankruptcy, insolvency or other similar law; or
the continued existence for more than thirty (30) days in respect
of the Borrower of any involuntary case (or other proceeding)
under the Federal Bankruptcy Code, as now constituted or
hereafter amended, or under any other applicable bankruptcy,
insolvency or other similar law; or the appointment of a
receiver, liquidator, assignee, custodian, manager, trustee,
sequestrator or similar official of the Borrower or for any
substantial part of its business; or the making by the Borrower
of any assignment for the benefit of creditors; or the failure of
the Borrower generally to pay its debts as they become due; or
the taking by the Borrower of action to do or authorize any of
the foregoing or in the furtherance of any of the foregoing.
Section 6.02 Effect of Default.
(a) Upon the occurrence of an Event of Default, the Lender,
in its sole and absolute discretion, may (i) declare all of the
Loan to be immediately due and payable and/or exercise such of
the other remedies provided for in the Loan Documents as the
Lender may elect; and/or (ii) pursue any other rights or remedies
available to the Lender under this Agreement or the other Loan
Documents.
(b) Without limiting any remedy otherwise available to the
Lender, and at Lender's option, the Borrower shall pay as a late
charge, to the extent permitted by law, five cents ($.05) per
each dollar ($1.00) of each payment more than ten (10) days in
arrears and accepted by the Lender, to cover the extra expense
involved in handling delinquent payments.
(c) If the Borrower fails to observe or perform any of the
covenants or agreements on the part of the Borrower to be
performed hereunder, then the Lender may, but shall not be
obligated to, perform the same, and all necessary and reasonable
costs incurred by the Lender in performing the Borrower's
covenants and agreements, including reasonable counsel fees,
shall be repaid by the Borrower upon demand, together with
interest thereon at the default rate under the Note.
Section 6.03 No Waiver.
(a) Any failure of the Lender to exercise its option to
declare the Loan immediately due and payable, or any forbearance
by the Lender before or after any exercise of such option, or any
forbearance to exercise any other remedy of the Lender, or any
withdrawals or abandonment of the Lender of any of its right in
any one circumstance, shall not be construed as a waiver of any
option, power, remedy or right of the Lender hereunder except to
the extent, if any, the action of the Lender constitutes an
express waiver with respect to such one circumstance. The rights
and remedies of the Lender expressed and contained in this
Agreement and in the other Loan Documents are cumulative, and
none of them shall be deemed to be exclusive of any other or of
any right or remedy the Lender may now or hereafter have in law
or in equity. The election of any one or more remedies shall not
be deemed to be an election of remedies under any statute, rule,
regulation or other law.
(b) The obligations of the Borrower (and the rights and
remedies of the Lender against the Borrower) hereunder shall in
no way be modified, abrogated, terminated or adversely affected
by (i) any forbearance by the Lender in collecting any sums due,
or (ii) the granting of any extension of time to perform any
obligation hereunder, or (iii) any impairment of the collateral,
if any, which may now or hereafter be assigned or delivered to
Lender to secure payment of the Loan, by reason of any act,
failure to act or negligence of the Lender.
Article VII
Miscellaneous
Section 7.01 Notices. All notices to be given hereunder
shall be delivered by hand, or sent to the party to be notified
via Certified Mail, Return Receipt Requested, or sent by a
recognized overnight courier which provides evidence of receipt,
and shall be deemed given when delivered by hand or one (1) day
after delivery to such recognized overnight courier, or three (3)
days after being posted with the United States Postal Service
addressed to the parties as follows:
If to the Lender at: InterBank Funding
Corporation
0000 Xxxxxxxxxxx Xxxxxx, X. X.
Xxxxxxxxxx, D. C. 20009-1137
If to the Borrower at: [name]
Section 7.02 Successors and Assigns. The terms Borrower
and Lender shall include the named Borrower and the named Lender
and their respective legal representatives, successors and
assigns.
Section 7.03 Severability. If any one or more of the
provisions contained in this Agreement or in any of the other
Loan Documents shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other
provision of this Agreement or any other of the other Loan
Documents, and in lieu of such invalid, illegal or unenforceable
provision, there shall be added automatically as a part of this
Agreement a provision as similar to such invalid, illegal or
unenforceable provision as may be possible and be valid, legal
and enforceable.
Section 7.04 Expenses of Lender. The Borrower shall pay
all out-of-pocket expenses, including but not limited to,
reasonable counsel fees incurred by Lender in connection with the
preparation, execution and delivery of this Agreement and the
enforcement or amendment of any of its rights or provisions
hereunder. Expenses for the preparation and review of the
documents shall be collected at the closing. Any other expenses
incurred will be collected at the time of the final
reconciliation.
Section 7.05 Indemnity. The Borrower shall indemnify
and hold harmless the Lender from and against any and all
liabilities, obligations, losses, damages, penalties, claims,
actions, suits, proceedings, judgments, costs, expenses, and
disbursements, including but not limited to, counsel fees, in any
way relating to or arising out of the failure of the Borrower to
perform in full its obligations under this Agreement or under any
of the other Loan Documents.
Section 7.06 Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the
District of Columbia without regard to conflict of laws or
principles.
Section 7.07 Jurisdiction. ANY ACTION OR PROCEEDING IN
CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT IN A COURT OF
RECORD OF THE DISTRICT OF COLUMBIA. THE PARTIES HEREBY CONSENTING
TO THE JURISDICTION THEREOF.
Section 7.08 Waiver of Certain Defenses. IN ANY ACTION
OR PROCEEDING IN CONNECTION WITH THIS AGREEMENT, OR ANY OTHER
LOAN DOCUMENTS, THE BORROWER WAIVES ANY CLAIM THAT THE DISTRICT
OF COLUMBIA IS AN INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT
TO INTERPOSE ANY DEFENSE BASED UPON ANY STATUTE OF LIMITATIONS OR
ANY CLAIM OF LACHES AND ANY SET-OFF OR COUNTERCLAIM OF ANY NATURE
OR DESCRIPTION EXCEPT FOR ANY COUNTERCLAIMS DEEMED COMPULSORY
UNDER APPLICABLE COURT RULES OR STATUTES.
Section 7.09 Waiver of Jury Trial and Waiver of Certain
Damages. IN ANY ACTION OR PROCEEDING IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENTS, THE LENDER AND BORROWER
MUTUALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY
JURY AND BORROWER HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
Section 7.10 Joint and Several Liability. If this
Agreement is executed by more than one person or entity, all
representations, warranties, obligations and covenants made by
the Borrower hereunder shall be deemed to have been made by each
of such persons and entities and the obligations and duties of
such parties hereunder shall be deemed to be joint and several in
all respects.
Section 7.11 Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to
be an original, but all of which, when taken together, shall
constitute one and the same instrument and shall become effective
when copies hereof, when taken together, bear the signatures of
each of the parties hereto and it shall not be necessary in
making proof of this instruments to produce or account for more
than one of such fully executed counterparts.
IN WITNESS WHEREOF, this Agreement has been fully executed by the
Borrower and Lender as of the day and year first above written.
BORROWER :
[name]
By: _____________________________
Name: _____________________________
(Please Print)
Title: _____________________________
(Please Print)
LENDER :
INTERBANK FUNDING CORPORATION
By: _____________________________
Name: _____________________________
(Please Print)
Title: _____________________________
(Please Print)
PROMISSORY NOTE
$840,000 Washington, DC November 10,
1998
FOR VALUE RECEIVED, we promise to pay to the order of
InterBank Funding Corporation, a Delaware Corporation with
offices at 0000 Xxxxxxxxxxx Xxxxxx, X. X., Xxxxxxxxxx, D. C.
20009-1137, or such other place as the holder hereof may from
time to time designate in writing, the sum of EIGHT HUNDRED FORTY
THOUSAND, AND NO/100 DOLLARS ($840,000.00), or so much thereof
as may be advanced, in lawful money of the United States, with
interest on the amount from time to time outstanding at the rate
of fifteen percent (15.00%) per annum, payable as hereinafter
stipulated.
THE ENTIRE PRINCIPAL BALANCE and all unpaid and accrued
interest on this Note shall be due and payable on the 10th day of
November, 1999.
Upon not less than ten (10) days prior written notice of its
intent to do so, Maker shall have the privilege of prepaying all
or any part of this Note on the last day of any month, without
penalty.
The principal of this Note after maturity and all past due
interest shall bear interest until paid at that rate that shall
be ten per cent (10%) per annum in excess of the rate above
stated, or the maximum permissible by law, whichever is the
lesser.
Default in the payment of any part of the principal or
interest, when due, or failure to comply with any of the
obligations, agreements and conditions contemplated by the Loan
Agreement of even date herewith pursuant to which this Note is
issued or in the instrument given to secure this Note shall, at
the option of the Holder hereof, mature the whole of this Note,
upon notice to Maker.
In the event this Note is placed into the hands of an
attorney for collection, or if collected through Probate or
Bankruptcy proceedings, then an additional ten per cent (10% on
the amount of principal and interest then owing hereon, shall be
added to the same as attorney's fees.
To the extent permitted by law, the makers and all
endorsers, sureties and guarantors of this Note hereby severally
waive notice of intention to accelerate, notice of acceleration,
presentment for payment, notice of nonpayment, protest and
diligence in bringing suite, against any party hereto, and
consent to any renewal, extension, or rearrangement, or other
indulgence with respect to this Note any time without notice to
any of them.
It is the intent of Maker and Payee in the making of the
loan represented by this Note, including all obligations arising
hereunder (the "Loan"), to contract in strict compliance with
applicable usury law. In furtherance thereof, Maker and Payee
stipulate and agree that none of the terms and provisions
contained herein, or in any instrument executed in connection
herewith, shall ever be construed to create a contract to pay for
the use, forbearance or detention of money or to pay interest at
a rate in excess of the maximum interest rate permitted to be
charged by applicable law. Neither the Maker nor any guarantors,
endorsers or other parties now or hereafter becoming liable for
payment of the Loan shall ever be required to pay interest
thereon at a rate in excess of the maximum interest that may be
lawfully charged under applicable law, and the provisions of this
Note or any other instruments now or hereafter executed in
connection herewith which may be in apparent conflict herewith
shall be deemed inoperative. If the maturity of the Loan shall
be accelerated for any reason or if the principal of the Loan is
paid prior to the end of the term thereof, and as a result
thereof the interest received for the actual period of existence
of the Loan exceeds the applicable maximum lawful rate, the
Holder of the Loan shall refund to Maker the amount of such
excess or shall credit the amount of such excess against the
principal balance of the Loan then outstanding. In the event
that Payee or any other holder of the Loan shall collect monies
which are deemed to constitute interest in an amount sufficient
to increase the effective interest rate on the Loan to a rate in
excess of that permitted to be charged by applicable law, all
such sums deemed to constitute interest in excess of the lawful
rate shall, upon such determination, at the option of the Payee,
be immediately returned to the Maker or credited against the
principal balance of the Loan then outstanding. The term
"applicable Law" as used herein shall mean the laws of the
District of Columbia or the laws of the United States, whichever
laws allow the greater rate of interest, as such laws now exist
or may be changed or amended or come into effect in the future.
This Note has been issued pursuant to a Loan Agreement of
even date herewith between Maker and Payee, to which reference is
made for all purposes. Advances against this note and required
reductions in the outstanding principal balance of this Note
shall be governed by the Loan Agreement. Payee is entitled to
the benefits of the security provided for in the Loan Agreement,
including a security interest in the designated accounts
receivable of Maker created by a Security Agreement of even
date herewith.
[name]
By: ________________________________
Name:
________________________________
(Please Print)
Title:
________________________________
(Please Print)
SECURITY AGREEMENT
This Security Agreement (the "Agreement") dated as of the
10th day of November 1998, is made by and between [name] (the
"Debtor"), and InterBank Funding Corporation, a Delaware
corporation (the "Secured Party").
RECITALS:
A. The Debtor and the Secured Party have entered into that
certain Loan Agreement (the "Loan Agreement") of even date
herewith under the terms of which the Secured Party has committed
to provide to the Debtor a loan in the original aggregate
principal amount of up to Eight Hundred Forty Thousand, and
no/100 Dollars ($840,000), and Debtor has agreed to repay such
loan, pursuant to a Promissory Note of even date herewith (the
"Note"). The obligations of Debtor arising under the Note, the
Loan Agreement and all other documents executed in connection
therewith are hereinafter sometimes collectively referred to as
the "Secured Obligations."
B. This Agreement is issued pursuant to, and is subject to
all terms, provisions, conditions and limitations set forth in
the Loan Agreement, and if any provision contained in this
Agreement is in conflict with or inconsistent with any provision
contained in the Loan Agreement, the Loan Agreement shall govern
and control. Capitalized terms used but not otherwise defined
herein shall have the meanings as ascribed to them in the Loan
Agreement.
C. Pursuant to the Loan Agreement, the Secured Party has
this day provided all or a portion of such funds to the Debtor.
D. As a condition to providing such funds to the Debtor,
the Secured Party requires that the Debtor grant a security
interest in certain property owned by the Debtor to secure
payment and performance of certain obligations of the Debtor,
including its obligations under the Note.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and confessed, the
parties hereto agree as follows:
1. Security Interest. The Debtor hereby grants to the
Secured Party security interests in and to any and all present or
future rights of the Debtor in and to all of the following
rights, interests, and property (all of the following being
herein sometimes called the "Collateral"):
(a) Debtor's ownership interest in Preferred Pension
Administrators
2. The Obligations. The security interests herein
granted (the "Security Interests") shall secure full payment and
performance of all of the Secured Obligations.
3. Representations and Warranties of the Debtor. The
Debtor represents and warrants to the Secured Party that (a) the
Debtor is the owner of the Collateral; (b) the Security Interests
are first and prior security interests in and to all of the
Collateral; and (c) to the Debtor's knowledge, except as
disclosed in the Loan Agreement, no dispute, right of setoff,
counterclaim, or defenses exist with respect to all or any part
of the Collateral. The delivery at any time by the Debtor to the
Secured Party of Collateral shall constitute a representation and
warranty by the Debtor under this Agreement that, with respect to
such Collateral, and each item thereof, the matters heretofore
warranted in clauses (a) through (c) of this Section 3 are true
and correct in all material respects.
4. Defaults. As used herein, the term "Event of Default"
has the meaning given to such term in the Loan Agreement, all of
the terms, covenants, conditions and provision of which are
incorporated herein by reference the same as if set forth herein
verbatim.
5. Remedies. Subject to Section 19 hereof, without
limiting or affecting any rights, remedies or privileges
unrelated to any Event of Default that Secured Party may have
under the Loan Agreement, the Note or any Other Agreements, upon
the occurrence of an Event of Default and during the continuance
thereof, the Secured Party may exercise any and
all rights, remedies, and privileges it may have under the
District of Columbia Business and Commerce Code and any of the
Loan Agreement, the Note and the Other Agreements that are
triggered by an Event of Default. Without limiting the
generality of the foregoing, before or after default Secured
Party may contact account debtors directly to verify information
furnished by Debtor; notify obligors on the Collateral to pay
Secured Party directly; take control of all proceeds of and
payments on any Collateral and apply them against the Secured
Obligations; and, as Debtor's agent endorse any documents or
chattel paper that is Collateral or that represents Collateral.
Secured Party has no obligation to collect any account and will
not be liable for failure to collect any account or for any act
or omission on the part of Secured Party or Secured Party's
officers, agents or employees, except willful misconduct.
6. Costs, Risks. Subject to Section 19 hereof, should any
part of the Collateral come into the possession of Secured Party,
whether before or after an Event of Default, Secured Party may
use or operate such Collateral for the purpose of preserving it
or its value, or pursuant to the order of a court of appropriate
jurisdiction or in accordance with any other rights held by
Secured Party in respect of the Collateral. Debtor covenants to
promptly reimburse and pay to the Secured Party, at the Secured
Party's request, the amount of all reasonable expenses (including
the cost of any insurance and payment of taxes or other charges )
incurred by the Secured Party in connection with its custody,
preservation, use, or operation of the Collateral, and, all such
expenses, costs, taxes, and other charges shall be a part of the
Secured Obligations and shall bear interest as provided under the
Loan Agreement from the date incurred until the date repaid to
the Secured Party. It is agreed, however, that the risk of loss
or damage to such Collateral is on the Debtor, and the Secured
Party shall have no liability whatsoever for failure to obtain or
maintain insurance, nor to determine whether any insurance ever
in force is adequate as to amount or as to the risks insured.
7. Notice. Reasonable notification of the time and
place of any public sale of the Collateral, or reasonable
notification of the time after which any private sale or other
intended disposition of the Collateral is to be made (including
retention thereof in satisfaction of the Liabilities), shall be
sent to the Debtor and to any other person entitled under the
Code to notice. It is agreed that notice sent or given at least
ten (10) Business Days prior to the taking of the action to which
the notice relates is reasonable notification and notice for the
purposes of this paragraph.
8. Rights Cumulative. All rights and remedies of the
Secured Party hereunder are cumulative of each other and of every
other right or remedy which the Secured Party may otherwise have
at law or in equity or under any other contract or other writing
for the enforcement of the Security Interests herein or in the
payment of the Note or the Secured Obligations, and the exercise
of one or more rights or remedies shall not prejudice or impair
the concurrent or subsequent exercise of other rights or
remedies.
9. Assignment. The rights, powers and interests held by
the Secured Party hereunder, together with the Security Interests
in the Collateral, may be transferred and assigned by the
Security Party in accordance with the terms of the Loan
Agreement.
10. No Waiver. No failure on the part of the Secured
Party to exercise, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise by the Secured Party of any right,
power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
11. Binding Effect. This Agreement shall be binding on
the Debtor and the Secured Party and their respective successors
and permitted assigns and shall inure to the benefit of the
Secured Party, and the Secured Party's successors and permitted
assigns.
12. Termination. This Agreement and the Security
Interests in the Collateral will terminate when the Secured
Obligations have been paid in fully by extinguishment thereof but
not by renewal, modification or extension thereof. Upon such
termination, the Secured Party agrees to execute and to deliver
to Debtor upon request appropriate termination statements and
releases of lien evidencing such termination.
13. Governing Law. THIS AGREEMENT CONSTITUTES A SECURED
COMMERCIAL LENDING TRANSACTION GOVERNED BY THE UNIFORM COMMERCIAL
CODE (TO THE EXTENT APPLICABLE). THIS AGREEMENT SHALL BE DEEMED
TO HAVE BEEN MADE AT THE DISTRICT OF COLUMBIA AND SHALL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES
APPLICABLE THERETO AND THE INTERNAL LAWS OF THE DISTRICT OF
COLUMBIA APPLICABLE TO AGREEMENTS EXECUTED, DELIVERED AND
PERFORMED WITHIN SUCH STATE, AND THE DEBTOR HEREBY WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT
ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED
TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THE LOAN AGREEMENT.
DEBTOR WAIVES TRIAL BY JURY, ANY OBJECTION BASED ON FORUM NON
CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS
PARAGRAPH 13 SHALL AFFECT THE RIGHT OF THE SECURED PARTY TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHT OF SECURED PARTY TO BRING ANY ACTION OR PROCEEDING AGAINST
DEBTOR AND/OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION WHERE SUCH PARTY MAINTAINS OFFICES OR HAS PROPERTY.
14. Mailings. Unless otherwise required herein, any notice,
request, instruction or other document required or permitted to
be delivered hereunder by either party hereto to the other shall
be given as set forth in the Loan Agreement, and shall be deemed
to have been delivered as set forth therein.
15. Agreement as Financing Statement. The Secured Party
shall have the right at any time to execute and file a copy of
this Agreement as a financing statement, but the failure of the
Secured Party to do so shall not impair the validity or
enforceability of this Agreement.
16. Severability. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable under present or
future laws effective during the term of this Agreement, the
legality, validity, and enforceability of the remaining
provisions of this Agreement shall not be affected thereby, and
in lieu of each such illegal, invalid, or unenforceable provision
there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid,
and enforceable.
17. Counterparts. This Agreement may be executed in a
number of identical counterparts, each of which, for all
purposes, is to be deemed an original, and all of which
collectively constitute one agreement, but in making proof of
this Agreement, it shall not be necessary to produce or account
for more than one such counterpart.
18. Number and Gender of Words. Whenever herein the
singular number is used, the same shall include the plural where
appropriate, and words of any gender shall include each other
gender where appropriate.
19. Further Assurances. Debtor agrees to execute, deliver
and file any and all other agreements, assignments, conveyances,
mortgages, financing statements and/or other instruments and
documents as may be requested by Secured Party in order to
evidence or perfect Secured Party's security interests in the
Collateral
20. Matters pertaining to Collateral. Debtor has delivered or
will deliver to Secured Party certificate(s) representing the
Collateral, either endorsed or with a fully executed Collateral
power attached to be held by Secured party in accordance with the
terms of this Agreement.
(a) The Debtor grants the Secured Party and its assigns full
power to sell, assign, and deliver the whole or any part of the
Collateral, or any additions thereto, at any brokers exchange or
elsewhere, at public or private sale, at the Secured party's
option, in order to satisfy any part of the obligations of Debtor
now existing or hereafter arising, which are in default. On any
such sale Secured Party or its assigns may purchase all or any
part of the Collateral. Out of the proceeds of any sale, Secured
Party shall retain an amount equal to the principal and interest
then due under the Loan plus attorney's fees and costs of sale,
and shall pay any remaining balance to the Debtor. The rights and
remedies provided for herein shall be in addition to the rights
of Secured Party under applicable law, the Loan Agreement, the
Note or any other Agreements.
(b) The Debtor authorizes Secured Party to deliver at any time
all or any portion of the Collateral, to deal with the Collateral
in the same manner as if it stood in the name of Secured Party,
and to apply the proceeds of sale in payment or reduction of any
Secured Obligations of Debtor. Debtor waives any notice of any
kind relative to the sale or other disposition of the Collateral.
(c) During the term of this Agreement, all cash dividends or
other distributions made or paid on the Collateral shall become
part of the security pledged hereunder, and on the occurrence of
an Event of Default, any dividends paid on the Collateral shall
be paid to Secured Party in partial satisfaction of the Secured
Obligations of Debtor.
(d) During the term of this Agreement, and so long as no Event
of Default has occurred and is continuing, the Debtor shall have
the right to vote the Collateral on all corporate questions. If
an Event of Default occurs, and so long as it continues, then, at
Secured Party's election in its sole discretion indicated by
written notice to Debtor, all of Debtor's rights to exercise any
voting or other consensual rights pertaining to the Collateral or
any part thereof shall cease, and all such rights shall thereupon
become vested in Secured Party, which shall thereupon have the
sole right to exercise such voting and other consensual rights.
In furtherance of the immediately preceding sentence, Debtor
irrevocably constitutes and appoints Secured Party, effective
upon Secured Party's giving of the foregoing notice after the
occurrence and during the continuance of any Event of Default, as
Debtor's proxy with full power, in the same manner, to the same
extent and with the same effect as if Debtor were to do the same,
and whether or not the Collateral has been transferred into the
name of Secured Party or its nominee: (a) to attend all meetings
of stockholders of Preferred Pension Administrators and to vote
the Collateral at such meetings in such manner as Secured Party
shall, in its sole discretion, deem appropriate, including,
without limitation, in favor of the liquidation of Preferred
Pension Administrators; (b) to consent, in the sole discretion of
Secured Party, to any and all action by or with respect to
Preferred Pension Administrators for which the consent of the
stockholders of Preferred Pension Administrators is or may be
necessary or appropriate; and (c) without limitation, to do all
things which Debtor can or could do as a stockholder of Preferred
Pension Administrators, giving to Secured Party full power of
substitution and revocation. The foregoing proxy shall terminate
when this Agreement is no longer in full force and effect as
hereinafter provided. Debtor hereby revokes any proxy or proxies
heretofore given by Debtor to any person or persons whatsoever
and agrees not to give any other proxies in derogation hereof
until this Agreement is no longer in full force and effect as
hereinafter provided.
e) In the event that, during the term of this
Agreement, any stock dividend, reclassification,
readjustment, or other change is declared or made
in the capital structure of the issuer of the
Collateral, all new, substituted and additional
shares, or other securities, issued by reason of
any such change shall be held by Secured Party
under the terms of this Agreement in the same
manner as the Collateral originally pledged
hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day, month and year first above written.
SECURED PARTY:
INTERBANK FUNDING CORPORATION
By: ________________________________
Name:
________________________________
(Please Print)
Title:
________________________________
(Please Print)
DEBTOR:
[name]
By: ________________________________
Name:
________________________________
(Please Print
Title:
_________________________________
(Please Print)
