Exhibit 10.28
STOCK PLEDGE AGREEMENT
This the STOCK PLEDGE AGREEMENT is dated as of December 5, 2001,
("AGREEMENT") by and between x-XxxXxxx.xxx ("ASSIGNOR" and "COMPANY"), a Nevada
corporation and NPF X, Inc., ("ASSIGNEE"), an Ohio corporation. The Assignor and
the Assignee are referred to collectively as the "PARTIES" and individually as a
"PARTY."
IN CONSIDERATION OF THE PREMISES, AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY
ACKNOWLEDGED, THE PARTIES HEREBY AGREE AS FOLLOWS:
SECTION 1. DEFINITIONS
All capitalized terms not otherwise defined in this Agreement shall
have the definitions set forth Note, which definitions are, to the extent
applicable, incorporated in this Agreement by reference.
SECTION 2. SECURITY INTEREST
2.1 GRANT OF SECURITY INTEREST. In recognition of the benefits
derived by Assignor funds advance pursuant to the Note (as defined below) and in
consideration therefor, as security for the prompt and full payment and
performance of the Secured Obligations (as defined below), the Assignor hereby
pledges and assigns to the Assignee and grants to the Assignee a lien on and
security interest in 3,000,000 shares of the Company's common stock, including
all right, title and interest in and to any payments, cash, distributions,
dividends, interest, instruments, liquidations, securities, redemptions,
exchanges, reorganization, recapitalizations, warrants, options and other
property, rights or proceeds from time to time received, receivable or otherwise
made or distributed in respect of or in exchange for any or all of such Capital
Stock, and any certificates now or hereafter evidencing such common stock
("PLEDGED SHARES"), and (ii) all Proceeds of the foregoing (as defined below).
The Pledged Shares and Proceeds are referred to collectively as the
"COLLATERAL".
2.2 SECURED OBLIGATIONS. The term "SECURED OBLIGATIONS" means (i)
all obligations of the Company evidenced by the Promissory Note due December 7,
2001 ("NOTE") made payable by the Company to the Assignee in the original
principal amount of $4,040,000, together with all extensions, renewals,
amendments, modifications, substitutions, replacements, and novations thereof,
(ii) all obligations of the Company to pay fees or charges or reimburse costs
and expenses (including legal fees and expenses) under the Note, and (iii) the
payment of all costs and expenses of Assignee in retaking, holding, preparing
for sale, selling or otherwise disposing of the Collateral and any and all
reasonable costs and expenses (including reasonable legal fees and expenses)
expended by the Assignee in enforcing the provisions of the Note or this
Agreement.
2.3 PROCEEDS. The term "PROCEEDS" means any proceeds, as such term
is defined in the UCC, including the following at any time whatsoever arising or
receivable: (i) cash, funds, securities or other property received upon any
collection, exchange, sale or other disposition of any of the Collateral and any
property into which any of the Collateral is converted, (ii) any and all
proceeds of any insurance, indemnity, warranty or guaranty payable from time to
time with respect to any of the Collateral, (iii) any and all payments (in any
form whatsoever) made or due and payable from time to time in connection with
any requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral, and (iv) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
SECTION 3. PERFECTION OF SECURITY INTEREST
(a) The certificates evidencing the Pledged Shares shall be delivered
by the Assignor to the Assignee immediately by overnight delivery if the Note is
not paid in full by 2 p.m. E. S. T., December 10th, together with duly executed
instruments of transfer or assignment in blank. In addition, the Assignor shall,
upon request of the Assignee, take such other actions as the Assignee may from
time to time reasonably request (including delivery to the Assignee of such
financing statements as may be necessary or desirable, in the reasonable opinion
of Assignee) to perfect the security interest created herein. Assignor hereby
authorizes Assignee to file, and appoints Assignee its attorney-in-fact for the
purpose of executing and filing, financing statements or continuation statements
to the extent permitted by applicable law.
(b) Any certificates now or hereafter issued to the Assignor
representing or evidencing all or any part of the Collateral (including
securities issued pursuant to any stock split, reclassification,
recapitalization, reorganization or otherwise), together with duly executed
instruments of transfer or assignment in blank in a form reasonably satisfactory
to the Assignee, shall be delivered to the Assignee in pledge as additional
Collateral.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The representations and warranties set forth in this Section shall
survive the execution and delivery of this Agreement. The Assignor represents
and warrants to the Assignee as follows.
(a) The Assignor is the legal, record and beneficial owner of, and has
good and marketable title to, the Collateral free and clear of any lien, charge
or adverse claim thereon or affecting the title thereto except for the security
interest created by this Agreement. The Pledged Shares are duly authorized,
fully paid and nonassessable.
(b) The Assignor has the right and requisite authority to pledge,
assign, transfer, deliver, deposit and set over the Collateral to the Assignee
as provided for herein, and there is no agreement or instrument (including
agreements relating to restrictions or limitations on sale, assignment or
transfer, put or call options, stock purchase, buy-sell rights or similar
arrangements) to which Assignor is a party having application to the Collateral.
There is no
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irrevocable proxy, voting trust, shareholders agreement, close corporation
agreement or similar agreement or arrangement with respect to the Collateral.
(c) No consent, approval, authorization, or other action by, and no
notice to or filing with, any Person is required (i) for the pledge and
assignment by the Assignor of the Collateral pursuant to this Agreement, (ii)
for the execution, delivery or performance of this Agreement by the Assignor, or
(iii) for the exercise by the Assignee of the rights or remedies provided for in
this Agreement, except for financing statements and such filings as may be
required by laws affecting the offering and sale of securities generally.
(d) The pledge, assignment and delivery of certificates representing,
and/or the filing of the financing statements with respect to, the Collateral
pursuant to this Agreement will create a valid first priority lien on and a
perfected security interest in the Collateral.
(e) This Agreement has been duly authorized, executed and delivered by
Assignor and constitutes a valid and binding obligation of Assignor enforceable
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting the rights of
creditors generally or by the application of general equity principles.
SECTION 5. COVENANTS WITH RESPECT TO COLLATERAL
Assignor covenants to the Assignee as follows.
(a) Without the prior written consent of the Assignee, the Assignor
will not (i) sell, assign, or transfer any of its rights in or to the
Collateral, (ii) grant or suffer to exist, and defend the Collateral against,
any lien thereon, or (iii) permit any levy or attachment to be made against the
Collateral.
(b) The Assignor will promptly execute, acknowledge and deliver all
such further agreements, documents and instruments and take all such action as
the Assignee from time to time may reasonably request in order to preserve,
perfect and maintain perfected the security interest created hereby, to carry
out the provisions and purposes of this Agreement and to ensure to the Assignee
the benefits of the lien and security interest in and to the Collateral created
by this Agreement.
(c) The Assignor will defend the title to the Collateral and the lien
and security interest of the Assignee thereon against the claim of any Person
and will preserve and protect such lien and security interest until such time as
the Secured Obligations have been paid or performed in full.
(d) The Assignor will not change its name, identity or address or
principal place of business, as the case may be, in any manner which is
reasonably likely to make any financing or continuation statement filed in
connection herewith seriously misleading within the meaning of the UCC unless
Assignor shall have given the Assignee at least 30 days' prior notice thereof
and
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shall have taken all action necessary or reasonably requested by the Assignee to
amend such financing statement or continuation statement so that it is not
seriously misleading.
(e) The Assignor will promptly notify the Assignee of any lien or claim
that has attached to or been made or asserted against any of the Collateral or
the occurrence of any other event or condition that could have a material
adverse effect on the Collateral or the security interest created hereunder.
SECTION 6. VOTING AND DIVIDEND RIGHTS
As long as no Event of Default (as defined below) shall have occurred
and be continuing and until notice shall be given to the Assignor by the
Assignee:
(a) the Assignor shall have the right to exercise voting and other
consensual rights with respect to the Collateral or any part thereof in a manner
not inconsistent with the provisions of this Agreement; provided, however, that
no vote shall be cast, and no consent, waiver or ratification shall be given or
action taken without the prior written consent of the Assignee, which (i) would
have the effect of materially impairing the interest of the Assignee in respect
of the Collateral, (ii) which would authorize or effect (A) the dissolution or
liquidation, in whole or in part, of the Company, (B) the consolidation or
merger of the Company with any other Person, (C) the sale or other disposition
of all or substantially all of the assets of the Company, or (D) the issuance of
any additional capital stock of the Company;
(b) the Assignor shall be entitled to receive and retain any and all
dividends, interest or distributions declared or paid with respect to the
Collateral, provided, however, that any and all (i) dividends, interest or other
distributions paid or payable other than in cash in respect of, and instruments
and other property received, receivable or otherwise distributed in respect of,
or in exchange for, any Collateral, (ii) dividends, interest or other
distributions paid or payable in cash in respect of any Collateral in connection
with a partial or total liquidation or dissolution of the Company or in
connection with a reduction of capital, capital surplus or paid-in-surplus, and
(iii) cash paid, payable or otherwise distributed in redemption of, or in
exchange for, any Collateral shall be delivered to the Assignee to hold as
Collateral and shall, if received by the Assignor, be received in trust for the
benefit of the Assignee. All such items received by the Assignee shall be held
as cash collateral and either held by the Assignee or released to the Assignor
in the sole discretion of the Assignee, of if any Event of Default shall have
occurred and be continuing, shall be applied to the Secured Obligations in such
order and manner as the Assignee determines in its sole discretion.
SECTION 7. EVENTS OF DEFAULT
The occurrence of any one or more of the following events (regardless
of the reason therefor) shall constitute an "Event of Default" hereunder.
(a) An Event of Default (as defined in the Note) shall have occurred
and be continuing.
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(b) A breach or failure of, or default under, any covenant, agreement,
term, representation or warranty set forth herein, or any representation or
warranty contained herein shall be false or materially misleading.
SECTION 8. DEFAULTS AND REMEDIES
(a) In addition to all rights and remedies given to the Assignee by
this Agreement, the Assignee shall have all the rights and remedies of a secured
party under the UCC. The rights, remedies and powers provided to the Assignee
hereunder are cumulative and not exclusive of any other powers, rights or
remedies available to the Assignee.
(b) Upon the occurrence and continuance of an Event of Default and
following ten (10) days notice to Assignor, Assignee may (i) cause the transfer
and register in its name or in the name of its designee the whole or any part of
the Collateral and may elect to retain the Collateral, (ii) exercise any voting
or consensual rights with respect thereto, (iii) collect and receive all cash
or non-cash dividends, distributions or other payments at any time declared or
paid with respect to the Collateral, (iv) exercise any right of conversion,
exchange, subscription or any other rights, privileges or options pertaining to
the Collateral, (v) sell in one or more sales after ten (10) days' notice of the
time and place of any public sale or of the time after which a private sale is
to take place (which notice the Assignor agrees is commercially reasonable), but
without any previous notice or advertisement, the whole or any part of the
Collateral, and (vi) to otherwise act with respect to the Collateral as though
the Assignee were the absolute owner thereof. The Assignor hereby irrevocably
constitutes and appoints the Assignee, after the occurrence and during the
continuation of an Event of Default, the proxy and attorney-in-fact of the
Assignor, with full power of substitution, to sign any document or take any act
which the Assignee may deem necessary or advisable to preserve, protect,
exercise and enforce its rights and remedies hereunder; PROVIDED, HOWEVER, that
the Assignee shall not have any duty to exercise any such right or to preserve
the same and shall not be liable for any failure to do so or for any delay in
doing so. This power of attorney is a power coupled with an interest and shall
be irrevocable.
(c) Any sale of the Collateral shall be made at a public or private
sale at the Assignee's place of business or elsewhere to be named in the notice
of sale, in one or more sales or lots, either for cash or upon credit or for
future delivery at such price as the Assignee may deem commercially reasonable.
The Assignee may be the purchaser of the whole or any part of the Collateral so
sold and hold the same thereafter in its own right free from any claim or right
or equity of redemption of the Assignor. Each sale shall be made to the highest
bidder, but the Assignee reserves the right to reject any and all bids at such
sale which, in its absolute discretion, it shall deem inadequate. Demands of
performance and notices of sale, (except as otherwise herein specifically
provided for), advertisements and the presence of property at sale are hereby
waived and any sale hereunder may be conducted by an auctioneer or any officer
or agent of the Assignee. Any sale of the Collateral conducted in conformity
with reasonable commercial practices of banks, insurance companies or other
financial institutions shall be deemed commercially reasonable. The Assignee may
apply the sale proceeds in such order and manner as the Assignee may elect in
its sole discretion.
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(d) Assignor agrees that following the occurrence and during the
continuance of an Event of Default, (i) it will not at any time plead, claim or
take the benefit of any appraisal, valuation, stay, extension, moratorium,
redemption or marshaling law now or hereafter in force in order to prevent or
delay the enforcement of this Agreement or the absolute sale of the whole or any
part of the Collateral or the possession thereof by any purchaser at any sale
hereunder, and Assignor waives the benefit of all such laws to the extent it
lawfully may do so, and (ii) it will not interfere with any right, power and
remedy of the Assignee provided for in this Agreement or now or hereafter
existing at law or in equity or by statute or otherwise, or the exercise or
beginning of the exercise by the Assignee of any one or more of such rights,
powers or remedies. No failure or delay on the part of the Assignee to exercise
any such right, power or remedy and no notice or demand which may be given to or
made upon the Assignor by the Assignee with respect to any such remedies shall
operate as a waiver thereof, or limit or impair the Assignee's right to take any
action or to exercise any power or remedy hereunder, without notice or demand,
or prejudice its rights as against the Assignor in any respect.
(e) The Assignor recognizes that the Assignee may be unable to effect a
public sale of any or all of the Collateral by reason of certain prohibitions
contained in the law or in the Securities Act, but may be compelled to resort to
one or more private sales thereof to a restricted group of purchasers who will
be obliged to agree, among other things, to acquire such Collateral for their
own account for investment and not with a view to the distribution thereof. The
Assignor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable to the seller than if such sale were a public
sale and, notwithstanding such circumstances, agrees that any such private sale
shall, to the extent permitted by law, be deemed to have been made in a
commercially reasonable manner. The Assignee shall not be under any obligation
to delay a sale of any of the Collateral for the period of time necessary to
permit the issuer of the Collateral to register such securities under the
Securities Act or under any applicable state securities laws, even if such
issuer would agree to do so.
(f) Assignor further agrees that a breach of any of the covenants
contained in this Section will cause irreparable injury to the Assignee, that
the Assignee has no adequate remedy at law in respect of such breach and, as a
consequence, agrees that each and every covenant contained in this Section shall
be specifically enforceable against the Assignor and Assignor hereby waives and
agrees not to assert any defenses against an action for specific performance of
such covenants except for a defense that the Secured Obligations are not then
due and payable in accordance with the agreements and instruments governing and
evidencing such obligations.
SECTION 9. POSSESSION; REASONABLE CARE
The Assignee shall have the right to hold in its possession all
Collateral pledged, assigned or transferred hereunder and from time to time
constituting a portion of the Collateral. The Assignee may, from time to time,
in its sole discretion, appoint one or more agents to hold physical custody, for
the account of the Assignee, of any or all of the Collateral. The Assignee shall
be deemed to have exercised reasonable care in the custody and preservation of
the Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Assignee accords its own property. The
Assignee shall not have any responsibility for (a) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders
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or other matters relative to any Collateral, whether or not the Assignee has or
is deemed to have knowledge of such matters, or (b) taking any necessary steps
to preserve rights against any parties with respect to any Collateral. The
Assignee shall not be responsible for any decline in the value of the
Collateral.
SECTION 10. WAIVER
Assignor waives demand, presentment, protest, notice of protest, notice
of acceptance and promptness in commencing suit hereunder. No delay, omission or
forbearance by the Assignee in exercising any rights under this Agreement or the
Note shall operate as a waiver of such rights or of any other rights and shall
not affect, discharge, diminish or impair the Assignor's obligations hereunder.
Waiver on any one occasion shall not be construed as a bar to or waiver of any
rights or remedy on any future occasion.
SECTION 11. SECURITY INTEREST ABSOLUTE
All rights of the Assignee and all obligations of the Assignor
hereunder shall be absolute and unconditional irrespective of (i) any
invalidity, deficiency, illegality or unenforceability of the Note or any other
agreement or instrument governing or evidencing any Secured Obligations; (ii)
any exchange, release or non-perfection of any other collateral, or any release
or amendment or waiver of or consent to departure from any guaranty, for all or
any of the Secured Obligations; or (iii) any defense or excuse for failure to
perform or other circumstance which might otherwise constitute a defense
available to, or a release or discharge of the Assignor or the Company, other
than payment in fact of the Secured Obligations.
SECTION 12. RELEASE
Assignor consents and agrees that the Assignee may at any time, or from
time to time, in its discretion exchange, release and/or surrender all of the
Collateral, or any part thereof, which is now or may hereafter be held by the
Assignee in connection with all or any of the Secured Obligations, all in such
manner and upon such terms as the Assignee may deem proper, and without notice
to or further assent from the Assignor; it being hereby agreed that the Assignor
shall be and remain bound upon this Agreement, irrespective of the existence,
value or condition of any of the Collateral, and notwithstanding any such
exchange, surrender or release. No act or omission of any kind on the Assignee's
part shall in any event affect or impair this Agreement.
SECTION 13. INDEMNIFICATION
The Assignor agrees to indemnify and hold the Assignee harmless from
and against any loss, liability, claim, damage, injury, obligation, penalty,
cost, suit, action, interest, demand, expense (including costs of investigation,
defense, reasonable attorneys' fees, amounts paid in settlement, and judgments)
("INDEMNIFIED LOSSES") incurred or arising by reason of the taking or the
failure to take action by the Assignee, in good faith, in respect of any
transaction effected under this Agreement or in connection with the lien
provided for herein; PROVIDED, HOWEVER, the
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Assignor shall not be liable for such indemnification to the extent that such
Indemnified Loss results from the Assignee's gross negligence or willful
misconduct. The Assignor agrees to pay to the Assignee all out-of-pocket costs
and expenses, including reasonable fees and disbursements of counsel, reasonably
incurred by the Assignee in connection with the enforcement of this Agreement
and of any transactions effected pursuant to this Agreement. The provisions of
this Section shall survive the termination of this Agreement.
SECTION 14. TERMINATION
This Agreement shall be terminated upon the payment in full of the
Secured Obligations in accordance with their terms. Upon termination, the
Assignee shall cooperate with the Assignor to secure the release of the security
interest, assignment and pledge created hereby, including release and return of
all pledged items of Collateral and the execution of any releases of financing
statements reasonably requested by the Assignor.
SECTION 15. AMENDMENT.
This Agreement may not be amended, restated, supplemented or otherwise
modified except by an express written agreement executed and delivered by the
Assignor and the Assignee. Compliance with the covenants and other provisions of
this Agreement may not be waived except by an express written waiver signed and
delivered by the Assignee.
SECTION 16. CAPTIONS AND SEVERABILITY.
The captions used herein are for reference only, and shall not be
deemed a part of this Agreement. If any of the terms or provisions of this
Agreement shall be deemed unenforceable, the enforceability of the remaining
terms and provisions shall not be affected.
SECTION 17. GOVERNING LAW.
This Agreement was negotiated in the State of Ohio and accepted by the
Assignee in the State of Ohio. The Assignor agrees that the States of Ohio has a
substantial relationship to the transactions evidenced hereby and further agree
that this Agreement shall be governed by and construed in accordance with the
laws of the State of Ohio without regard to conflicts of laws principles.
SECTION 18. WAIVER OF JURY TRIAL AND SET-OFF BY ASSIGNOR.
The Assignor, after consulting or having had the opportunity to consult
with legal counsel, knowingly, voluntarily and intentionally agree that in any
litigation in any court with respect to, in connection with, or arising out of
this Agreement, or the validity, protection, interpretation, collection or
enforcement thereof, or any other claim or dispute howsoever arising between the
Assignee and the Assignor, (i) the Assignor hereby waives the right to interpose
any set-off, recoupment, counterclaim or crossclaim in connection with any such
litigation,
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irrespective of the nature thereof, unless such set-off recoupment, counterclaim
or crossclaim could not, by reason of any applicable federal or stale procedural
law, be interposed, pleaded or alleged in any other action, and (ii) the
Assignor hereby expressly waives any right they may have to a trial by jury of
any claim, demand, action or cause of action (A) arising under this Agreement or
any other instrument, document or agreement executed or delivered in connection
herewith, or (B) in any way connected with or related or incidental to the
dealings of the Assignee and the Assignor with respect to this Agreement or any
other instrument, document or agreement executed or delivered in connection
herewith, or the transactions related hereto, in each case whether sounding in
contract or tort or otherwise; and the Assignor hereby agrees and consents that
any such claim, demand, action or cause of action shall be decided by court
trial without a jury and the Assignee may file an original counterpart or a copy
of this section with any court as written evidence of the consent of the
Assignor to the waiver of its rights to trial by jury.
SECTION 19. CONSENT TO JURISDICTION, VENUE AND SERVICE OF PROCESS.
(a) The Assignor, after having consulted or having had the opportunity
to consult with legal counsel, knowingly, voluntarily, intentionally, and
irrevocably: (i) consents to the exclusive jurisdiction of the Common Pleas
Court of Franklin County, Ohio and the United States District Court for the
Southern District of Ohio, Eastern Division with respect to any litigation; (ii)
waives any objections to the venue of any litigation in either such court, any
defense of inconvenient forum to the maintenance of any such litigation in any
such court and any bond (other than any appeals or supersedeas bond), surety or
other security that might be required of any other party with respect to the
maintenance of any such litigation in any such court (except, in the case of the
Assignee, as and to the extent necessary to secure in rem jurisdiction over the
property of the Assignor or any guarantor or surety of the Note, or to enforce
any lien or security interest or enforce any judgment); (iii) agrees not to
commence any litigation except in either of such courts and agrees not to
contest the removal of any litigation commenced in any other court to either of
such courts; (iv) agrees not to seek to remove, by consolidation or otherwise,
any litigation commenced in either of such courts to any other court; (v) waives
personal service of process in connection with any litigation and consents to
service of process by registered or certified mail, postage prepaid, addressed
as provided in this Agreement; and (vi) agrees not to contest the discretionary
jurisdiction of either such court with respect to any declaratory judgment or
other action in equity.
(b) These provisions shall not be deemed to have been modified in any
respect or relinquished by either the Assignee or the Assignor except by written
instrument executed by each of them. Nothing in this Section shall be deemed to
affect the right of any party to serve legal process in any manner permitted by
law. The Assignor agrees that a final judgment in any litigation so brought
shall be deemed to conclusive and may be enforced by suit on such judgment or in
any other manner provided by applicable law.
The Assignor expressly acknowledges that the provisions of this Section
have been mutually agreed upon by the Assignee and Assignor for the purpose of
minimizing expense, delay and conflict in resolving disputes arising under or in
connection with the transactions
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between and relationships among the parties contemplated by the Note, and,
therefore, agree that: (i) in the event that any party commences litigation in
any court other than one of the courts specified in this Section and such
litigation is dismissed, stayed or removed to one of the courts specified in
this Section by virtue of the enforcement of the provisions of this Section,
such party shall reimburse all of the other parties to such litigation for all
legal fees and other expenses incurred by such parties in defending such
litigation and securing such stay, dismissal or removal (including all cost
incurred in connection with compliance with discovery in such litigation); and
(b) in, the event that any party commences litigation in any court other than
one of the courts specified in this Section, all discovery and responsive
pleading in such litigation shall be stayed pending the determination of any
motion by any other party to cause such litigation to be dismissed, stayed or
removed to one of the courts specified in this Section by virtue of the
enforcement of the provisions of this Section.
THE PARTIES HAVE EXECUTED AND DELIVERED THIS AGREEMENT EFFECTIVE AS OF
THE DAY AND YEAR FIRST ABOVE WRITTEN.
ASSIGNOR: ASSIGNEE:
X-XXXXXXX.XXX NPF X, INC.
By: _________________________ By: ___________________________
Name: Xxxxx Xxxxxxxxxxxx Name: _________________________
Its: Chief Executive Officer Its: _________________________
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PROMISSORY NOTE
BORROWER: X-XXXXXXX.XXX, A NEVADA CORPORATION
FEDERAL TAX IDENTIFICATION NUMBER: 00-0000000
BORROWER ADDRESS: 0000 XXXXX XXXXXXX XXXXXXX, XXXXX 000
XXXXXXXXXXXX XXXXX, XXXXXXX 00000
LENDER: NPF X, INC.
PRINCIPAL SUM: $4,040,000
STATED INTEREST RATE: 14.0% PER ANNUM
DATE OF NOTE: DECEMBER 5, 0000
XXXX XX XXXXXX, XXXX
MATURITY DATE: DECEMBER 7, 2001
PAYMENT DATES: INTEREST: DUE ON MATURITY DATE
PRINCIPAL: DUE ON MATURITY DATE
CLOSING FEE: $40,000
OFFSETS: SALE AGREEMENT
This Promissory Note made payable by the Borrower to the Lender is due
December 7, 2001 ("NOTE").
FOR VALUE RECEIVED, THE BORROWER HEREBY PROMISES TO PAY TO THE ORDER OF
THE LENDER THE PRINCIPAL SUM OF FOUR MILLION FORTY THOUSAND AND NO/100 DOLLARS
($4,040,000), TOGETHER WITH INTEREST UPON THE TERMS AND SUBJECT TO THE
CONDITIONS SET FORTH IN THIS NOTE.
Page 1 of 8
SECTION 1. DEFINITIONS AND MISCELLANEOUS PROVISIONS.
The terms listed at the beginning of this Note shall have the meanings
set forth opposite them.
SECTION 2. CONDITIONS PRECEDENT TO ADVANCE OF FUNDS.
The obligation of the Lender to advance funds hereunder is subject to
the execution of the Stock Pledge Agreement (as defined below).
SECTION 3. INTEREST.
Until the occurrence of any Event of Default; interest shall accrue on
the unpaid Principal Sum from the date of this Note until paid in full (whether
before or after judgment) at a fixed rate of interest equal to the Stated
Interest Rate. All accrued but unpaid interest shall be due on the Maturity
Date.
Upon the occurrence of an Event of Default; the Lender may elect, in
the sole exercise of its discretion, to impose the Default Interest Rate by
giving written Notice of such election to the Borrower ("DEFAULT RATE
ELECTION"). In the event of a Default Rate Election, the interest rate on this
Note shall be a fixed rate per annum equal to the Default Interest Rate, and the
Default Interest Rate shall continue to be the interest rate on this Note until
the Event of Default has been remedied or waived and no other Default or Event
of Default is continuing unremedied or unwaived, provided that this Note has not
been accelerated.
Interest shall be calculated based upon: (i) the actual number of days
elapsed, including any additional days elapsed because the scheduled payment
date fell on a day other than a Business Day; and (ii) a 360 day year.
Notwithstanding any provision of this Note to the contrary: (i) in no
event shall the interest rate on this Note be a rate per annum in excess of the
maximum interest rate permissible under applicable law, and (ii) to the extent
that interest (or other amounts paid with respect to this Note that are deemed
to be interest under applicable law) results in interest payments in excess of
those permitted under applicable law, such excess payments shall be applied
first to the payment of the unpaid Principal Sum, second to the payment of any
other amounts due from the Borrower to the Lender, and third, if no other
obligations are owing to the Lender, then refunded to the Borrower. The Borrower
agrees that if such excess payments are applied in the manner provided for in
this Section, then to the fullest extent permitted by applicable law, Lender
shall not be subject to any penalty provided for by any applicable law relating
to charging or collecting interest in excess of that permitted by applicable
law.
SECTION 4. MANNER OF PAYMENTS.
Except as provided for in SECTION 5 hereof, unless otherwise
agreed by the Lender, all payments in connection with this Note shall be made by
wire transfer of immediately available funds to the account of the Lender at or
before 2:00 p.m. Columbus, Ohio time on the
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Maturity Date. Any wire transfer received by the Lender after 2:00 p.m.
Columbus, Ohio time shall be deemed to have been received by the Lender prior to
such time on the next Business Day.
Unless otherwise specified in writing by the Lender to the Borrower,
all such payments shall be wired to the Lender as follows:
Huntington National Bank
Columbus, OH
ABA # 000000000
FAO NPF X, Inc.
Account # 01891721704
In the event that any scheduled payment date falls on a day other than
a business day, the payment date shall be deemed to be the following business
day, and such additional days shall be deemed to have elapsed for purposes of
computing interest payable on such payment date.
SECTION 5. APPLICATION OF PAYMENTS DUE BORROWER UNDER THE SALE AGREEMENT.
In the event that any and all amounts due and owing under this Note are
not paid in full by thirty (30) days from the date of this Note, the Borrower
now irrevocably directs, instructs and authorizes: (i) Purchaser (as defined
below) to withhold from the Purchase Price (as defined in that certain Sale and
Subservicing Agreement dated as of January 15, 2001 ("SALE AGREEMENT") by and
among the Borrower and NPF XII, Inc. ("Purchaser") and National Premier
Financial Services, Inc. ("Servicer")) any and all amounts necessary to satisfy
the Borrower's obligations hereunder; (ii) Purchaser to forward such amounts
withheld from the Purchase Price under the Sale Agreement to the Lender; and
(iii) Leader to use such amounts to satisfy the Borrower's obligations under
this Note. Purchaser may in its sole discretion determine the amount to be
withheld from each Purchase Price otherwise to be paid to Borrower so long as
the aggregate amounts withheld therefrom do not exceed the obligations under
this Note. The Borrower hereby acknowledges and agrees that Lender is advancing
the funds under this Note in reliance on being able to receive such proceeds
from the Purchaser.
SECTION 6. MATURITY DATE.
The Maturity Date shall be December 7, 2001. The unpaid Principal Sum
of this Note, together with all accrued but unpaid interest shall be due and
payable in full on the Maturity Date.
SECTION 7. CLOSING FEE.
The Secured Party is hereby authorized and directed to withhold the
Closing Fee from the proceeds of this Note.
SECTION 8. EVENTS OF DEFAULT.
There shall exist an "Event of Default" if any of the following occurs:
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(a) the Borrower shall fail to pay any Principal Sum of this Note when
due in accordance with the terms thereof or hereof; or to pay any interest on
this Note within five (5) days after any such amount becomes due in accordance
with the terms thereof or hereof,
(b) any representation or warranty made, or deemed made pursuant other
terms of this Note or which is contained in any certificate, document or
financial or other statement furnished at any time under or in connection with
this Note shall prove to have been incorrect in any material respect on or as of
the date made or deemed made;
(c) the Borrower shall (i) default in any payment of principal of or
interest on any indebtedness (other than this Note) beyond the period of grace,
if any, provided in the instrument or agreement under which such indebtedness is
created or evidenced; or (ii) default in the observance or performance of any
other agreement or condition relating to any such indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, and as a consequence of such default
or condition such indebtedness has become or has been declared, due and payable
before its stated maturity or before its regularly scheduled dates of payment or
(iii) as a consequence of the occurrence or continuation of any event or
condition (other than the passage of time or the right of the holder of the
indebtedness to covert such indebtedness into equity interests), the Borrower
has become obligated to purchase or repay the indebtedness before it regular
maturity or before its regularly scheduled dates of payment;
(d) (i) the Borrower shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have any order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeing reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or any
substantial part of its assets, or the Borrower shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against the
Borrower any case, proceeding or other action of a nature referred to in clause
(i) above which shall not be dismissed or stayed within 60 days after the
commencement thereof; or (iii) there shall be commenced against the Borrower any
case, proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which shall not be dismissed or stayed within 60 days after the
commencement thereof; or (iv) the Borrower shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii) or (iii) above; or (v) the Borrower shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due;
(e) one or more judgments or decrees shall be entered against the
Borrower involving in the aggregate a liability of $25,000 or more which shall
not be fully covered by insurance and all such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof;
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(f) the Borrower: (i) conceals, removes or permits to be concealed or
removed all or any part of its property with the intent to hinder, delay or
defraud any of its creditors; (ii) makes or permits any conveyance of its
material properties that would be deemed fraudulent to creditors under any
bankruptcy, fraudulent conveyance or other applicable law; or (iii) has, while
it is insolvent, caused or permitted any of its creditors to obtain a lien on
any of its property by legal proceedings or otherwise which is not vacated
within 30 days (other than liens to the Purchaser);
(g) the dissolution of the Borrower;
(h) the Borrower shall, in the reasonable judgment of the Lender, have
experienced a material adverse change in its financial condition, results of
operation, properties or assets;
(i) any of the documents executed in connection with this Note shall be
declared invalid, void or unenforceable; or the validity or enforceability
thereof shall be contested or challenged by the Borrower; or any determination
of partial invalidity, voidness or unenforceability shall be made which would,
individually or in the aggregate; materially reduce the principal benefits of
any breach of, or security provided by, this Note or the Stock Pledge Agreement
(as defined below) to the Lender, or make the remedies generally afforded
thereby inadequate for the practical realization thereof;
(j) a Termination Date as defined in the Sale Agreement shall have
occurred.
SECTION 9. REMEDIES.
(a) Upon the occurrence of an Event of Default, the Lender shall have
(i) all rights and remedies granted to it under this Note and (ii) all rights of
a creditor under applicable law (including the applicable UNIFORM COMMERCIAL
CODE). All such rights and remedies and the exercise thereof shall be
cumulative. No exercise of any such rights and remedies shall be deemed to be
exclusive or constitute an election of remedies.
(b) Upon the occurrence of a default under Section 8 (d) or (i),
payment of this Note shall be accelerated automatically and without notice. Upon
the occurrence and during the continuation of any other Event of Default, the
Lender may, in the sole exercise of its discretion, elect to cause payment of
this Note to be accelerated by giving notice of such election to the Borrower.
Once payment of this Note has been accelerated, such acceleration may be revoked
only by the Lender, in the sole exercise of its discretion, by giving written
notice of revocation to the Borrower.
(c) In addition to any rights and remedies by law, the Lender shall
have the right, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, upon
any amount becoming due and payable by the Borrower hereunder (whether by
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against any and all amounts in which the Borrower has an interest (regardless of
whether any other person has an interest therein, any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time in the
possession or control of the Lender or due from Lender to
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Borrower under any agreement without regard to whether the Lender has received
the same in pledge, for safekeeping, as agent for collection of transmission or
otherwise or whether the Lender has conditionally released the same; and
provided that any amounts so set-off and appropriated shall be applied first to
the payment of this Note and then to all other amounts owing from Borrower to
Lender under any other agreement.
SECTION 10. WAIVERS BY BORROWER.
To the fullest extent permitted by applicable law, Borrower waives with
respect to this Note: presentment; demand and protest, and notice of
presentment, intent to accelerate, acceleration, protest, default, nonpayment,
maturity, release, compromise, settlement, extension or renewal; and diligence
in collection. Borrower agrees that the Lender may release all or any part of
the collateral securing the payment of this Note; any guarantor or surety with
respect to this Note, or any other Borrower from its obligation with respect to
this Note, all without Notice to Borrower and without affecting in any way the
obligation of Borrower under this Note.
SECTION 11. SECURITY FOR PAYMENT.
Payment of this Note is secured under the terms and subject to the
conditions of that certain Stock Pledge Agreement dated as of the date hereof
("STOCK PLEDGE AGREEMENT") by and between the Borrower, as pledgor and the
Lender, as pledgee. Nothing in this Note shall be deemed to preclude the Lender
from obtaining other or additional security for the payment of this Note, to
require the Lender to elect remedies or proceed against any collateral or
guaranty before accelerating payment of this Note or to take any legal or other
action to collect payment of this Note.
SECTION 12. SUBSTITUTION, RENEWAL OR EXTENSION.
The obligations evidenced hereby may from time to time be evidenced by
another note or notes given in substitution, renewal or extension hereof. Any
security interest or mortgage which secures the obligations evidenced hereby
shall remain in full force and effect notwithstanding any such substitution,
renewal or extension.
SECTION 13. COLLECTION FOR COSTS.
The Borrower shall reimburse the Lender for all reasonable costs and
expenses (including reasonable legal fees and disbursements) incurred by the
Lender in connection with the collection or attempted collection of the payment
of this Note through legal proceedings or otherwise following an Event of
Default.
SECTION 14. AMENDMENT.
This Note may not be amended, restated, supplemented or otherwise
modified except by an express written agreement executed and delivered by the
Borrower and the Lender. Compliance with the covenants and other provisions of
this Note may not be waived except by an express written waiver signed and
delivered by the Lender.
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SECTION 15. CAPTIONS AND SEVERABILITY.
The captions used herein are for reference only and shall not be deemed
a part of this Note. If any of the terms or provisions of this Note shall be
deemed unenforceable, the enforceability of the remaining terms and provisions
shall not be affected.
SECTION 16. GOVERNING LAW.
This Note was negotiated in the State of Ohio and accepted by the
Lender in the State of Ohio, and the proceeds of this Note shall be disbursed
from the State of Ohio. The Borrower agrees that the State of Ohio has a
substantial relationship to the transactions evidenced hereby and further agree
that this Note shall be governed by and construed in accordance with the laws of
the State of Ohio without regard to conflicts of laws principles.
SECTION 17. WAIVER OF JURY TRIAL AND SET-OFF BY BORROWER.
The Borrower, after consulting or having had the opportunity to consult
with legal counsel, knowingly, voluntarily and intentionally agree that in any
litigation in any court with respect to, in connection with, or arising out of
this Note, or the validity, protection, interpretation, collection or
enforcement thereof, or any other claim or dispute howsoever arising between the
Lender and the Borrower, (i) the Borrower hereby waives the right to interpose
any set-off, recoupment, counterclaim or crossclaim in connection with any such
litigation, irrespective of the nature thereof, unless such set-off recoupment,
counterclaim or crosselaim could not, by reason of any applicable federal or
state procedural law, be interposed, pleaded or alleged in any other action, and
(ii) the Borrower hereby expressly waives any right they may have to a trial by
jury of any claim, demand, action of cause of action (A) arising under this Note
or any other instrument, document or agreement executed or delivered in
connection herewith, or (B) in any way connected with or related or incidental
to the dealings of the Lender and the Borrower with respect to this Note or any
other instrument, document or agreement executed or delivered in connection
herewith, or the transactions related hereto, in each case whether sounding in
contract or tort or otherwise; and the Borrower hereby agrees and consents that
any such claim, demand, action or cause of action shall be decided by court
trial without a jury and the Lender may file an original counterpart or a copy
of this section with any court as written evidence of the consent of the
Borrower to the waiver of its rights to trial by jury.
SECTION 18. CONSENT TO JURISDICTION, VENUE AND SERVICE OF PROCESS.
(a) The Borrower, after having consulted or having had the opportunity to
consult with legal counsel, knowingly, voluntarily, intentionally, and
irrevocably: (i) consents to the exclusive jurisdiction of the Common Pleas
Court of Franklin County, Ohio and the United States District Court for the
Southern District of Ohio, Eastern Division with respect to any litigation; (ii)
waives any objections to the venue of any litigation in either such court, any
defense of inconvenient forum to the maintenance of any such litigation in any
such court and any bond (other than any appeals or supersedeas bond), surety or
other security that might be required of any other party with respect to the
maintenance of any such litigation in any such court (except, in the case of the
Lender, as and to the extent necessary to secure IN REM jurisdiction over the
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property of the Borrower or any guarantor or surety of this Note, or to enforce
any lien or security interest or enforce any judgment); (iii) agrees not to
commence any litigation except in either of such courts and agrees not to
contest the removal of any litigation commenced in any other court to either of
such courts; (iv) agrees not to seek to remove, by consolidation or otherwise,
any litigation commenced in either of such courts to any other court; (v) waives
personal service of process in connection with any litigation and consents to
service of process by registered or certified mail, postage prepaid, addressed
as provided in this Note; and (vi) agrees not to contest the discretionary
jurisdiction of either such court with respect to any declaratory judgment or
other action in equity.
(b) These provisions shall not be deemed to have been modified in any
respect or relinquished by either the Lender or the Borrower except by written
instrument executed by each of them. Nothing in this Section shall be deemed to
affect the right of any party to serve legal process in any manner permitted by
law. The Borrower agrees that a final judgment in any litigation so brought
shall be deemed to conclusive and may be enforced by suit on such judgment or in
any other manner provided by applicable law.
The Borrower expressly acknowledges that the provisions of this Section
have been mutually agreed upon by the Lender and Borrower for the purpose of
minimizing expense, delay and conflict in resolving disputes arising under or in
connection with the transactions between and relationships among the parties
contemplated by this Note, and, therefore, agree that: (i) in the event that any
party commences litigation in any court other than one of the courts specified
in this Section and such litigation is dismissed, stayed or removed to one of
the courts specified in this Section by virtue of the enforcement of the
provisions of this Section, such party shall reimburse all of the other parties
to such litigation for all legal fees and other expenses incurred by such
parties in defending such litigation and securing such stay, dismissal or
removal (including all cost incurred in connection with compliance with
discovery in such litigation); and (ii) in the event that any party commences
litigation in any court other than one of the courts specified in this Section,
all discovery and responsive pleading in such litigation shall be stayed pending
the determination of any motion by any other party to cause such litigation to
be dismissed, stayed or removed to one of the courts specified in this Section
by virtue of the enforcement of the provisions of this Section.
BORROWER:
X-XXXXXXX.XXX, INC.
By: _________________________
Name: Xxxxx X. Xxxxxxxxxxxx
Its: Chief Executive Officer
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