EXHIBIT 10.24
NASD
SECURED DEMAND NOTE
COLLATERAL AGREEMENT
AGREEMENT dated January 30, 2001 to be effective February 1, 2001
between Peter Rettman (the "Lender") and National Securities Corporation (the
Broker-Dealer").
Subject to the terms ad conditions hereinafter set forth, the
Broker-Dealer promises to return to the Lender or assigns, on February 1, 2004
(the "Scheduled Maturity Date")(the last day of a month at least one interest
payable monthly at the rate of 5 percent per annum from the effective date of
this Agreement, which date shall be the date so agreed upon by the Lender and
the Broker-Dealer unless otherwise determined by the National Association of
Securities Dealers, Inc. ("NASD"). This agreement shall not be considered a
satisfactory subordination agreement pursuant to the provisions of 17 CFR
240.15c3-1d unless and until the NASD has found the Agreement acceptable and
such Agreement has become effective in the form found acceptable.
The Lender has executed in favor or you National Securities Corporation
(the Broker-Dealer), a Secured Demand Note of even date in the form of Addendum
1 hereto. References herein to the "Note" shall be deemed to refer to such
Secured Demand Note and to any Note substituted therefor in accordance with the
terms hereof. The unpaid principal amount of the Note is hereinafter referred to
as the "Indebtedness."
As security for the payment of the principal evidenced by the Note, the
Lender hereby pledges to the Broker-Dealer the securities and cash, if an,
described in Schedule A, attached to the Note, as the same may from time to time
be amended in accordance with the terms hereof (the securities from time to time
listed in said Schedule are herein referred to as the "Securities" and any
securities, cash or other property at anytime pledged hereunder are herein
referred to as the "Collateral" and shall be subject to the risks of the
business.) All Securities shall be fully paid for and in bearer form or
registered in the name of the Broker-Dealer or its nominee or custodian.
The Lender irrevocably agrees that the obligations of the Broker-Dealer under
this Agreement with respect to the payment of principal and interest shall be
and are subordinate in right of payment and subject to the prior payment of
provision for payment in full of all claims of all other present and future
creditors of the Broker-Dealer arising out of any matter occurring prior to the
date on which the related Payment Obligation (as defined herein) matures
consistent with the provisions of 127 CFR 240.15c3-1 and 240.15c3-1d, except for
claims which are the subject of subordination agreements which rank on the same
priority as or are junior to the claim of the Lender under such subordination
agreements.
I. OWNERSHIP AND PROPERTY RIGHTS WITH RESPECT TO COLLATERAL
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(a) Subject only to the prior rights of the Broker-Dealer pledgee
hereunder and under the Note, until liquidated in accordance with Paragraph III
hereof the Lender shall have and retain full legal and beneficial ownership of
the Collateral and shall have the benefit of any increases and bear the risk of
any decreases in the value of such Collateral. Prior to such liquidation, the
Lender shall have the sole right to vote or have the sole right to any income
there from or distribution thereon by payment of interest of dividend or
otherwise, subject however, to the right of the Broker-Dealer to receive and
hold as pledgee all dividends payable in securities and all partial and complete
liquidating dividends; and shall pay all taxes, assessments or other charges
upon or with respect to such Securities or the income therefrom or distribution
thereon or the gain or loss of value thereof.
(b) The Lender, subject to the prior right of the Broker-Dealer as
pledgee, shall have the right to direct the sale of any Securities included in
the Collateral, to direct the purchase of securities with any cash included
therein, to withdraw excess collateral or to substitute cash or other securities
as Collateral, provided that the net proceeds of any such sale and the cash so
substituted and the securities so purchased are held by the Broker-Dealer, as
pledgee, and are included within the Collateral to secure payment of the Secured
Demand Note, and provided further that no such transaction shall be permitted
if, after giving effect thereto, the sum of the amount of any cash, plus the
Collateral Value (as defined herein) of the Securities, then pledged as
Collateral to secure the Secured Demand Note would be less than the unpaid
principal amount of the Secured Demand Note.
I. CERTAIN RIGHTS OF THE BROKER-DEALER
The Broker-Dealer, as holder of the note and pledgee of the Collateral,
shall have the right to:
(a) Pledge, repledge, hypothecate and re-hypothecate any or all
the Securities pledged as Collateral to secure the Secured Demand
Note, without notice, separately or in common with other
securities or property for the purpose of securing any
indebtedness of the Broker-Dealer;
(b) Lend itself or other any or all of the Securities and cash pledged
as collateral to secure this Secured Demand Note;
(c) Deposit any cash from time to time pledged as Collateral in
an account or accounts in its own name in any bank of trust
company, and to hold the Securities in bearer form, in its own
name, or in the name of its nominee or custodian; and
(d) Liquidate all or any part of the Securities then pledged as
Collateral and to apply the net proceeds of such liquidation,
together with any cash then included in the Collateral, in payment
in whole or in part of the Payment Obligation, if the Note is not
paid upon presentment and demand as provided for therein.
II. INSUFFICIENT COLLATERAL VALUE
If any cash plus Collateral Value of any Securities pledged as
Collateral to secure this Note is at any time less than the Indebtedness, the
Broker-Dealer shall give immediate written notice to the Lender and the NASD, in
which even the Lender may at its option:
(a)(i) Prior to 12 o'clock noon on the business day following the
transmittal of such notice pledge additional Collateral to bring the Collateral
Value up to an amount not less than the unpaid principal of the Note; and
(iii) Unless such additional Collateral is so pledged prior to
12 o'clock noon of the business day following the transmittal
of such notice, the Broker-Dealer shall forthwith sell all or
any part of the Collateral for the account of the Lender and
apply so much of the proceeds thereof any cash then included
in the Collateral as may be necessary to reduce or eliminate
the unpaid principal, provided that the unpaid principal need
not be reduced below the sum of any remaining cash plus the
Collateral Value of the remaining securities. The
Broker-Dealer shall not purchase for its own account any
Securities subject to such a sale.
(b)(i)(OPTIONAL) With the prior written consent of the NASD and the
Broker-Dealer, reduce the unpaid principal amount of the Note by not more than
15 percent of its original principal amount, provided that the Broker-Dealer
clearly establishes that its aggregate indebtedness would not, after giving
effect to such reduction, exceed 1000 percent of its net capital as those terms
are defined in 17 CFR 240.15c3-1, or if the Broker-Dealer is operating pursuant
to paragraph (a)(1)(ii) of 17 CFR 230.15c3-1 its net capital would be less than
5 percent of aggregate debit items computed in accordance with 17
CFR240.15c3-3a, or if registered as a futures commission merchant, 7 percent of
the funds required to be segregated pursuant to the Commodity Exchange Act, and
the regulations thereunder, (less the market value of the commodity options
purchased by option customers on or subject to the rules of a contract market,
provided, however, the deductions for each option customer shall be limited to
the amount of customer funds in such option customers account,) if greater, and
in the even of such reduction the right of the Lender to withdraw Collateral as
provided in paragraph I(b) shall be suspended. The NASD shall not consent to a
reduction of the principal amount of this Note if, after giving effect to such
reduction, net capital would be less than 120 percent of the minimum dollar
amount required by 17 CFR 240.15c3-1 including paragraph (a)(1)(ii), if
applicable, or such greater dollar amount as may be made applicable to the
Broker-Dealer by the NASD, or a governmental agency or self-regulatory body
having appropriate authority.
III. PAYMENT BY LENDER
Upon payment by the Lender, as distinguished from a reduction by the
Lender which is provided in paragraph III(b)(i), or reduction by the
Broker-Dealer as provided for in paragraph V, of all or any part of the unpaid
principal amount of this Note, the Broker-Dealer shall issue to the Lender a
subordinated loan agreement, preferred or common stock of the Broker-Dealer, or
if a partnership, shall credit a capital account of the Lender in the amount of
such payment, or in any combination of the foregoing, as specified below:
IV. PERMISSIVE PREPAYMENTS (OPTIONAL)
At the option of the Broker-Dealer, but not at the option of the
Lender, payment of all or any part of the "Payment Obligation" amount hereof
prior to the Scheduled Maturity Date may be made by the Broker-Dealer only upon
receipt of the prior written approval of the NASD, but in no even may any
prepayment be made before the expiration of one from the date this Agreement
became effective. No prepayment shall be made if after giving effect thereof
(and to all payments of Payment Obligations under any other subordination
agreements then outstanding, the maturity or accelerated maturity of which are
scheduled to fall due either within six months after the date such prepayment is
to occur or on or prior to the date on which the Payment Obligation hereof is
scheduled to mature, whichever date is earlier), without reference to any
projected profit of loss of the Broker-Dealer, either aggregate indebtedness of
the Broker-Dealer would exceed 1000 percent of its net capital or such lesser
percent as may be made applicable to the Broker-Dealer from time to time by the
NAS, or a governmental agency of self-regulatory body having appropriate
authority, or if the Broker-Dealer is operating pursuant to paragraph (a)(1)(ii)
of 17 CFR 240.15c3-1, its net capital would be less than 5 percent of aggregate
debit items computed in accordance with 17 CFR 240.15c3-3a, or if registered as
a futures commission merchant, 7 percent of the funds required to be segregated
pursuant to the Commodity Exchange Act and the regulations thereunder, (less the
market value of commodity options purchased by option customers on or subject to
the rules of a contract market, provided, however, the deduction for each option
customers on or subject to the rules of a contract market, provided, however,
the deduction for each option customer shall be limited to the amount of
customer funds in such option customers account,) if greater, or its net capital
would be less than 120 percent of the minimum dollar amount required by 17 CFR
240.15c3-1 including paragraph (a)(1)(ii), if applicable, or such greater dollar
amount as may be made applicable to the Broker-Dealer by the NASD, or a
governmental agency or self-regulatory body having appropriate authority.
V. NOTICE OF MATURITY OR ACCELERATED MATURITY
The Broker-Dealer shall immediately notify the NASD if, after giving
effect to all payment to Payment Obligations under subordination agreements then
outstanding which are then due or mature within six months without reference to
any projected profit or loss of the Broker-Dealer, either the aggregate
indebtedness of the Broker-Dealer would exceed 1200 percent of its net capital,
or in the case of a Broker-Dealer operating pursuant to paragraph (a)(1)(ii) of
17 CFR 240.15c3-1, its net capital would be less than 5 percent of aggregate
debit items computed in accordance with 17 CFR 240.15c3-3a, or if registered as
a futures commission merchant, 6 percent of the funds required to be segregated
pursuant to the Commodity Exchange Act and the regulations thereunder, (less the
market value of commodity options purchased by option customers on or subject to
the rules of a contract market, provided, however, the deduction for each option
customer shall be limited to the amount of customer funds in such option
customer's account,) if greater, and in either case, if its net capital would be
less than 120 percent of the minimum dollar amount required by 17 CFR 240.15c3-1
including paragraph (a)(1)(ii), if applicable, or such greater dollar amount as
may be made applicable to the Broker-Dealer by the NASD, or a governmental
agency or self-regulatory body having appropriate authority.
VI. WARRANTIES OF THE LENDER
The Lender hereby warrants the he has duly executed the Note; that he
has duly delivered the Note to the Broker-Dealer and, upon such delivery, the
Broker-Dealer acquired good title thereto; that the Note is his valid and
binding obligation enforceable by the Broker-Dealer in accordance with its
terms; that he has duly and validly pledged with the Broker-Dealer the
Securities described in Schedule A attached to the Note; and that the
Broker-Dealer as pledgee of the Securities has the rights with respect thereto
which are conferred upon it by this Agreement. Each such representation and
warranty shall survive the execution and delivery of the Note and the pledge of
the Securities.
The Lender represents that the Securities may be publicly offered and
sold without registrations under the Securities Act of 1933 as amended and that
the sale and transfer of the Securities is not restricted by that Act nor is it
restricted by any other law, agreement or in any other manner.
VII. BROKER-DEALERS CARRYING THE ACCOUNTS OF SPECIALISTS AND MARKET MAKERS IN
LISTED OPTIONS
A Broker-Dealer who guarantees, endorses, carries or clears specialist
or market-maker transactions in options listed on a national securities exchange
or facility of a national securities association shall not permit a reduction,
prepayment, or repayment of the unpaid principal amount if the effect would
cause the equity required in such specialist or market-maker accounts to exceed
1000 percent of the Broker-Dealer-s net capital or such percent as may be made
applicable to the Broker-Dealer from time to time by the NASD or a governmental
agency of self-regulatory body having appropriate authority.
VIII. BROKER-DEALERS REGISTERED WITH CFTC
If the Broker-Dealer is a futures commission merchant or introductory
broker as that term is designed in the Commodity Exchange Act, the Organization
agrees, consistent with the requirements of Section 1.17(h) of the regulations
of the CFTC (17 CFR 1.17(h)), that:
(a) Whenever prior written notice by the Broker-Dealer to the NASD
is required pursuant to the provisions of this Agreement, the same
prior written notice shall be given by the Broker-Dealer to (i) the
CFTC at its principal office in Washington, D.C., attention Chief
Accountant of Division of Trading and Markets, and/or (ii) the
commodity exchange of which the Organization is a member and which is
then designated by the CFTC as the Organization-s designated
self-regulatory organizations (the "DSRD");
(b) Whenever prior written consent, permission or approval of the
NASD is required pursuant to the provisions of this Agreement, the
Broker-Dealer shall also obtain the prior written consent, permission
or approval of the CFTC (and/or of the DSRO); and,
(c) Whenever the Broker-Dealer receives written notice of
acceleration of maturity pursuant to the provisions of this Agreement,
the Broker-Dealer shall promptly give written notice thereof to the
CFTC at the address above stated and/or to the DSRD.
IX. GENERAL
Neither the Lender, his heirs, executor, administrators, or assigns
shall be personally liable on such Note, and in the event of default, the
Broker-Dealer shall look for payment of such Note solely to the Collateral
pledged herein.
This Agreement shall not be subject to cancellation by either the
Lender of the Broker-Dealer, and no payment shall be made nor the Agreement
terminated, rescinded or modified by mutual consent or otherwise if the effect
thereof would be inconsistent with the requirements of 17 CFR 240.15c3-1 and
240.15c3-1d.
This Agreement may not be transferred, sold, assigned, pledged, or
otherwise encumbered or otherwise disposed of, and no lien, charge or other
encumbrance may be created or permitted to be created thereof without the prior
written consent of the NASD.
In the event of the appointment of a receiver or trustee of the
Broker-Dealer or in the event of its insolvency, liquidation pursuant to the
Securities Investor Protection Act of 1970 or otherwise, bankruptcy, assignment
for the benefit of creditors, reorganization whether or not pursuant to
bankruptcy laws, or any other marshaling of the assets and liabilities of the
Broker-Dealer, the Payment Obligation of the Broker-Dealer shall mature, and the
holder hereof shall not be entitled to participate or share, ratably or
otherwise, in the distribution of the assets of the Broker-Dealer until all
claims of all other present and future creditors of the Broker-Dealer, whose
claims are senior hereto, have been fully satisfied.
The Lender irrevocably agrees that the loan evidence hereby is not
being made in reliance upon the standing of the Broker-Dealer as a member
organization of the NASD or upon the NASD surveillance of the Broker-Dealer's
financial position or its compliance with the By-Laws, rules and practices of
the NASD. The Lender has made such investigation under the circumstances. The
Lender is not relying upon the NASD to provide any information concerning or
relating to the Broker-Dealer which it may now, or at any future time, have.
The term "Broker-Dealer", as used in this Agreement shall include the
broker-dealer, its heirs, executors, administrators, successors and assigns.
The term "Payment Obligation" shall mean the return of the Secured
Demand Note contributed to the Broker-Dealer of the reduction of the unpaid
principal amount thereof, and the return of cash or securities pledged as
Collateral to secure this Secured Demand Note.
The term "Collateral Value" of any securities pledged to secure this
Secured Demand note shall mean the market value of such Securities after giving
effect to the haircut deductions specified in subparagraph (c)(2)(vi) of 17 CFR
240.15c3-1, except for paragraph (c)(2)(vi)(J). In lieu of the reduction under
(c)(2)(vi)(J), the Broker-Dealer shall reduce the market value of the securities
pledged by 30%.
The provisions of this Agreement shall be binding upon the
Broker-Dealer and the Lender, and their respective heirs, executors, successors,
and assigns.
Any controversy arising out of or relating to this Agreement maybe
submitted to and settled by arbitration pursuant to the By-Laws and rules of the
NASD. The Broker-Dealer and the Lender shall be conclusively bound by such
arbitration.
This instrument embodies the entire agreement between the Broker-Dealer
and the Lender and no other evidence of such agreement has been or will be
executed without prior written consent of the NASD.
This Agreement shall be deemed to have been made under, and shall be
governed by, the laws of the State of Washington in all respects.
IN WITNESS WHEREOF the parties have se their hands and seal this 30th
day January 2001.
National Securities Corporation
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(Name of Broker-Dealer)
By ______________________ I.S.
(Authorized Person)
______________________ I.S
(Lender)
ADDENDUM I
SECURED DEMAND NOTE January 30, 2001
FOR VALUE RECEIVED, I promise to pay to National Securities Corporation
(the Broker-Dealer) at its principal office at 1001 Fourth Avenue, Suite 2200
Seattle, Washington 98154 (where presentment and demand for payment shall be
made), without interest, the sum of one million dollars ($1,000,000), on demand.
This Note is secured at its date by the pledge of the securities and
cash, if any, described in Schedule A attached hereto. I agree that whenever the
value of the securities and cash securing this Note, as determined in accordance
with the capital requirements of 17 CFR 240.15c3-1 or the rules and regulations
of the National Association of Securities Dealers, Inc. ("NASD") or those of a
government agency or self-regulatory body having appropriate authority which are
applicable to the Broker-Dealer shall exercise the rights set forth in paragraph
III(a)(ii) of the Secured Demand Note Collateral Agreement (the Agreement) of
even date between me and the Broker-Dealer without first making a demand hereof.
The Broker-Dealer, by acceptance, hereof, agrees, for itself, its
representatives, successors and assigns (1) that neither I, my heirs, executors,
administrators or assigns shall be personally liable on this Note, it being
intended that my obligation to pay the principal amount of this Note is included
for the sole purpose of establishing the existence of the indebtedness
represented hereby and (2) that in the event of default, the Broker-Dealer and
any such successor or assign shall look for payment solely to the Collateral
pledged to secure this Note, or otherwise provided, however, that nothing herein
contained shall be construed to release or impair the indebtedness evidenced by
this Note, or of the lien upon the Collateral pledged to secure it, or preclude
the application of the said pledged Collateral to the payment hereof in
accordance with the provisions of the Agreement.
The Broker-Dealer agrees the upon payment by me of all or any portion
of this Note, as distinguished from a reduction by me as provided in paragraph
III b(i) of the Agreement or reduction by the Broker-Dealer as provided for in
paragraph of the Agreement, the Broker-Dealer shall issue to me common stock in
the amount of such payment, as provided pursuant to paragraph IV of the
Agreement.
The Broker-Dealer further agrees that it will make a demand for payment
hereof only after it determines in good faith that it is in or approaching
financial difficulty, provided, however, that no failure to make such a
determination in good faith shall affect the effectiveness of a demand, or give
rise to any claim which is superior to my claim under the Agreement for the
withdrawal, return of deduction of the Note.
The term "in or approaching financial difficulty" shall mean for the
purposes hereof any of the specified and clearly measurable events enumerated
below: net capital deficiency
This Note and the securities and cash from time to time pledged to
secure it are subject in all respects to the provisions of the Agreement, a copy
of which may be examined at the principal office of the Broker-Dealer.
The term "Collateral" shall mean, as defined in subparagraph (b)(6) of
Appendix D of SEC Rule 15c3-1, "only cash and securities which are fully paid
for and which may be publicly offered or sold without registration under the
Securities Act of 1933, and the offer, sale and transfer of which are not
otherwise restricted."
________________________________ L.S.
Lender
National Securities Corporation
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Broker-Dealer
By ______________________________L.S.
Authorized Person