PLEDGE AGREEMENT
EXHIBIT
10.19
THIS
PLEDGE AGREEMENT (this “Agreement”), dated as
of May 13, 2010, is entered into by and between SSGI, Inc., a Florida
corporation (“Pledgor”), and Xxxxx
X. Xxxxx, Xx., an individual resident of the State of Florida (“Secured Party”), with
reference to the following:
PRELIMINARY
STATEMENTS
A. Pledgor,
Secured Party and the Company (as hereinafter defined) have entered into that
certain Stock Purchase Agreement, dated May 13, 2010 (the “Purchase Agreement”),
that provides for the purchase by Pledgor of all of the shares of capital stock
of the Company owned by Secured Party;
B. Secured
Party is unwilling to proceed with the sale of such shares unless Pledgor agrees
to pledge, grant, transfer, and assign to Secured Party a security interest in
the Collateral (as hereinafter defined) to secure the Secured Obligations (as
hereinafter defined), as provided herein; and
C. Capitalized
terms used in this Agreement but not otherwise defined herein shall have the
meanings ascribed to such terms in the Purchase Agreement.
NOW,
THEREFORE, in consideration of the mutual promises, covenants, representations,
and warranties set forth herein and for other good and valuable consideration,
the parties hereto agree as follows:
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1.
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Definitions and
Construction.
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(a)
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Definitions.
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As used
in this Agreement:
“Bankruptcy Code”
means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor statute.
“Business Day” means
any day that is not a Saturday, Sunday, or other day on which commercial banks
in West Palm Beach, Florida are closed.
“Code” means the
Uniform Commercial Code as in effect in the State of Florida from time to
time.
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“Collateral” shall
mean (i) all of the Purchased Shares (including, without limitation, the right
to receive profits, losses, dividends and distributions with respect to the
Purchased Shares), and (ii) the certificates or instruments representing the
Purchased Shares, whether now owned or hereafter acquired, now existing or
hereafter arising and wherever located.
“Company” means B
& M Construction Co., Inc., a Florida corporation.
“Event of Default”
means that Pledgor fails to pay when due and payable the full amount of any Cash
Consideration installment due to be paid to Secured Party under Section 1.3(b)
of the Purchase Agreement, and such failure is not cured within 5 business days
after the occurrence thereof.
“Governmental
Authority” shall mean the government of the United States of America or
any other nation, any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Holder” and “Holders” shall have
the meanings ascribed thereto in Section 3 of this Agreement.
“Lien” shall mean any
lien, mortgage, pledge, assignment (including any assignment of rights to
receive payments of money), security interest, charge, or encumbrance of any
kind (including any conditional sale or other title retention agreement, any
lease in the nature thereof, or any agreement to give any security
interest).
“Person” shall mean
any individual, corporation, trust, business trust, joint venture, joint stock
company, association, company, limited liability company, partnership,
Governmental Authority or other entity of whatever nature.
“Secured Obligations”
shall mean all liabilities, obligations, or undertakings owing by Pledgor to
Secured Party under Section 1.3(b) of the Purchase Agreement.
“Secured Party” shall
have the meaning ascribed thereto in the preamble to this Agreement, together
with its successors or assigns.
“Securities Act” shall
have the meaning ascribed thereto in Section 9(c) of this
Agreement.
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(b)
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Construction.
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(i) Unless
the context of this Agreement clearly requires otherwise, references to the
plural include the singular and to the singular include the plural, the part
includes the whole, the term “including” is not limiting, and the term “or” has,
except where otherwise indicated, the inclusive meaning represented by the
phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and other
similar terms in this Agreement refer to this Agreement as a whole and not
exclusively to any particular provision of this Agreement. Article, section,
subsection, exhibit, and schedule references are to this Agreement unless
otherwise specified. All of the exhibits or schedules attached to this Agreement
shall be deemed incorporated herein by reference. Any reference to any of the
following documents includes any and all alterations, amendments, restatements,
extensions, modifications, renewals, or supplements thereto or thereof, as
applicable: this Agreement or the Purchase Agreement.
(ii) Neither
this Agreement nor any uncertainty or ambiguity herein shall be construed or
resolved against Secured Party or Pledgor, whether under any rule of
construction or otherwise. On the contrary, this Agreement has been reviewed by
both of the parties and their respective counsel and shall be construed and
interpreted according to the ordinary meaning of the words used so as to fairly
accomplish the purposes and intentions of the parties hereto.
(iii) In
the event of any direct conflict between the express terms and provisions of
this Agreement and the Purchase Agreement, the terms and provisions of this
Agreement shall control.
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2.
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Pledge.
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As
security for the prompt payment and performance of the Secured Obligations in
full by Pledgor when due under Section 1.3(b) of the Purchase Agreement, Pledgor
hereby pledges, grants, transfers, and assigns to Secured Party a security
interest in all of Pledgor’s right, title, and interest in and to the
Collateral.
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3.
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Delivery and Registration of
Collateral.
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(a) All
certificates or instruments representing or evidencing the Collateral shall be
promptly delivered by Pledgor to Secured Party or its designee pursuant hereto
at a location designated by Secured Party and shall be held by or on behalf of
Secured Party pursuant hereto, and shall be in suitable form for transfer by
delivery, or shall be accompanied by a duly executed instrument of transfer or
assignment in blank, in form and substance reasonably satisfactory to Secured
Party, regardless of whether such certificate constitutes a “certificated
security” for purposes of the Code.
(b) Upon
the occurrence and during the continuance of an Event of Default, Secured Party
shall have the right, at any time in its discretion and without notice to
Pledgor, to transfer to or to register on the books of the Company (or of any
other Person maintaining records with respect to the Collateral) in the name of
Secured Party or any of its nominees any or all of the Collateral. In addition,
Secured Party shall have the right at any time to exchange certificates or
instruments representing or evidencing Collateral for certificates or
instruments of smaller or larger denominations.
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(c) If,
at any time and from time to time, any Collateral (including any certificate or
instrument representing or evidencing any Collateral) is in the possession of a
Person other than Secured Party or Pledgor (a “Holder”), then
Pledgor shall immediately, at Secured Party’s option, either cause such
Collateral to be delivered into Secured Party’s possession, or cause such Holder
to enter into a control agreement, in form and substance satisfactory to Secured
Party, and take all other steps deemed necessary by Secured Party to perfect the
security interest of Secured Party in such Collateral, all pursuant to
Sections 9-106 & 9-313 of the Code or other applicable law
governing the perfection of Secured Party’s security interest in the Collateral
in the possession of such Holder.
(d) Any
and all Collateral (including dividends, interest, and other cash distributions)
at any time received or held by Pledgor shall be so received or held in trust
for Secured Party, shall be segregated from other funds and property of Pledgor
and shall be forthwith delivered to Secured Party in the same form as so
received or held, with any necessary indorsements; provided that cash dividends
or distributions received by Pledgor, may be retained by Pledgor in accordance
with Section 4 and used in the ordinary course of Pledgor’s
business.
(e) If
at any time, and from time to time, any Collateral consists of an uncertificated
security or a security in book entry form, then Pledgor shall immediately cause
such Collateral to be registered or entered, as the case may be, in the name of
Secured Party, or otherwise cause Secured Party’s security interest thereon to
be perfected in accordance with applicable law.
(f) In
the event that any Collateral which are not securities (for purposes of the
Code) on the date hereof become treated as securities for purposes of the Code,
the Pledgor shall promptly take all steps necessary or advisable to establish
Secured Party’s “control” of such Collateral, as applicable.
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4.
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Voting Rights and Dividends and
Distributions.
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(a) So
long as no Event of Default shall have occurred and be continuing, Pledgor shall
be entitled to exercise or refrain from exercising any and all voting and other
consensual rights pertaining to the Collateral or any part thereof for any
purpose not inconsistent with the terms of the Purchase Agreement and shall be
entitled to receive and retain any cash dividends or distributions paid or
distributed in respect of the Collateral.
(b) Upon
the occurrence and during the continuance of an Event of Default, all rights of
Pledgor to exercise or refrain from exercising the voting and other consensual
rights or receive and retain cash dividends or distributions that it would
otherwise be entitled to exercise, refrain from exercising or receive and
retain, as applicable pursuant to Section 4(a), shall cease, and all such rights
shall thereupon become vested in Secured Party, who shall thereupon have the
sole right to exercise such voting or other consensual rights and to receive and
retain such cash dividends and distributions. Pledgor shall execute and deliver
(or cause to be executed and delivered) to Secured Party all such proxies and
other instruments as Secured Party may reasonably request for the purpose of
enabling Secured Party to exercise the voting and other rights which it is
entitled to exercise and to receive the dividends and distributions that it is
entitled to receive and retain pursuant to the preceding
sentence.
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5.
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Representations and
Warranties.
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Pledgor
represents, warrants, and covenants as follows:
(a) Pledgor
has taken all steps it deems necessary or appropriate to be informed on a
continuing basis of changes or potential changes affecting the Collateral
(including rights of conversion and exchange, rights to subscribe, payment of
dividends or distributions, reorganizations or recapitalization, tender offers
and voting and registration rights), and Pledgor agrees that Secured Party shall
not have any responsibility or liability for informing Pledgor of any such
changes or potential changes or for taking any action or omitting to take any
action with respect thereto.
(b) Pledgor
is a Florida corporation. The address of Pledgor’s principal place of business
is: 0000 Xxxxxxxxx Xxxx, Xxxxx 0, Xxxx Xxxx Xxxxx,
Xxxxxxx 00000.
(c) To
the knowledge of Pledgor, all information herein or hereafter supplied to
Secured Party by or on behalf of Pledgor in writing with respect to the
Collateral is, or in the case of information hereafter supplied will be,
accurate and complete in all material respects.
(d) Pledgor
is and will be the sole legal and beneficial owner of the Collateral (including
all other Collateral acquired by Pledgor after the date hereof) free and clear
of any adverse claim, Lien, or other right, title, or interest of any party,
other than the Liens in favor of Secured Party.
(e) This
Agreement, and the delivery to Secured Party of the Collateral (or the control
agreements referred to in Section 3 of this Agreement), creates a valid,
perfected, and first priority security interest in one hundred percent (100%) of
the Collateral in favor of Secured Party securing payment of the Secured
Obligations, and all actions necessary to achieve such perfection have been duly
taken.
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6.
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Further
Assurances.
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(a) Pledgor
hereby authorizes Secured Party to file one or more financing or continuation
statements, and amendments thereto, relative to all or any part of the
Collateral. A carbon, photographic, or other reproduction of this Agreement or
any financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
(b) Pledgor
will furnish to Secured Party, upon the request of Secured Party: (i) a
certificate executed by Pledgor, and dated as of the date of delivery to Secured
Party, itemizing in such detail as Secured Party may request, the Collateral
which, as of the date of such certificate, has been delivered to Secured Party
by Pledgor pursuant to the provisions of this Agreement; and (ii) such
statements and schedules further identifying and describing the Collateral and
such other reports in connection with the Collateral as Secured Party may
request.
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7.
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Covenants of
Pledgor.
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Pledgor
shall:
(c) Not
change its principal place of business without giving Secured Party at least ten
(10) days prior written notice thereof; and
(d) Upon
receipt by Pledgor of any material notice, report, or other communication from
the Company or any Holder relating to all or any part of the Collateral, deliver
such notice, report or other communication to Secured Party as soon as possible,
but in no event later than five (5) business days following the receipt thereof
by Pledgor.
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8.
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Secured Party as Pledgor’s
Attorney-in-Fact.
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Pledgor
hereby irrevocably appoints Secured Party as Pledgor’s limited attorney-in-fact,
with full authority in the place and stead of Pledgor and in the name of
Pledgor, Secured Party or otherwise, from time to time at Secured Party’s
discretion, to take any action and to execute any instrument that Secured Party
may reasonably deem necessary or advisable to accomplish the specific purposes
of this Agreement, including: (i) upon the occurrence and during the continuance
of an Event of Default, to receive, indorse, and collect all instruments made
payable to Pledgor representing any dividend, interest payment or other
distribution in respect of the Collateral or any part thereof to the extent
permitted hereunder and to give full discharge for the same and to execute and
file governmental notifications and reporting forms; (ii) to enter into any
control agreements Secured Party deems necessary pursuant to Section 3 of this
Agreement; or (iii) to arrange for the transfer of the Collateral on the books
of the Company or any other Person to the name of Secured Party or to the name
of Secured Party’s nominee.
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9.
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Remedies upon
Default.
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Upon the
occurrence and during the continuance of an Event of Default:
(a) Secured
Party may exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party on default under the Code (irrespective of whether
the Code applies to the affected items of Collateral), and Secured Party may
also without notice (except as specified below) sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any exchange,
broker’s board or at any of Secured Party’s offices or elsewhere, for cash, on
credit or for future delivery, at such time or times and at such price or prices
and upon such other terms as Secured Party may deem commercially reasonable,
irrespective of the impact of any such sales on the market price of the
Collateral. To the maximum extent permitted by applicable law, Secured Party may
be the purchaser of any or all of the Collateral at any such sale and shall be
entitled, for the purpose of bidding and making settlement or payment of the
purchase price for all or any portion of the Collateral sold at any such public
sale, to use and apply all or any part of the Secured Obligations as a credit on
account of the purchase price of any Collateral payable at such sale. Each
purchaser at any such sale shall hold the property sold absolutely free from any
claim or right on the part of Pledgor, and Pledgor hereby waives (to the extent
permitted by law) all rights of redemption, stay, or appraisal that it now has
or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted. Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten (10) calendar days notice to Pledgor of
the time and place of any public sale or the time after which a private sale is
to be made shall constitute reasonable notification. Secured Party shall not be
obligated to make any sale of Collateral regardless of notice of sale having
been given. Secured Party may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. To the maximum extent permitted by law, Pledgor hereby waives any
claims against Secured Party arising because the price at which any Collateral
may have been sold at such a private sale was less than the price that might
have been obtained at a public sale, even if Secured Party accepts the first
offer received and does not offer such Collateral to more than one
offeree.
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(b) Pledgor
hereby agrees that any sale or other disposition of the Collateral conducted in
conformity with reasonable commercial practices of banks, insurance companies,
or other financial institutions in the city and state where Secured Party is
located in disposing of property similar to the Collateral shall be deemed to be
commercially reasonable.
(c) Pledgor
hereby acknowledges that the sale by Secured Party of any Collateral pursuant to
the terms hereof in compliance with the Securities Act of 1933 as now in effect
or as hereafter amended, or any similar statute hereafter adopted with similar
purpose or effect (the “Securities Act”), as
well as applicable “Blue Sky” or other state securities laws, may require strict
limitations as to the manner in which Secured Party or any subsequent transferee
of the Collateral may dispose thereof. Pledgor acknowledges and agrees that in
order to protect Secured Party’s interest it may be necessary to sell the
Collateral at a price less than the maximum price attainable if a sale were
delayed or were made in another manner, such as a public offering under the
Securities Act. Pledgor has no objection to sale in such a manner and agrees
that Secured Party shall not have any obligation to obtain the maximum possible
price for the Collateral. Without limiting the generality of the foregoing,
Pledgor agrees that, upon the occurrence and during the continuation of an Event
of Default, Secured Party may, subject to applicable law, from time to time
attempt to sell all or any part of the Collateral by a private placement,
restricting the bidders and prospective purchasers to those who will represent
and agree that they are purchasing for investment only and not for distribution.
In so doing, Secured Party may solicit offers to buy the Collateral or any part
thereof for cash, from a limited number of investors reasonably believed by
Secured Party to be institutional investors or other accredited investors who
might be interested in purchasing the Collateral. If Secured Party solicits such
offers, then the acceptance by Secured Party of one of the offers shall be
deemed to be a commercially reasonable method of disposition of the
Collateral.
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(d) If
Secured Party shall determine to exercise its right to sell all or any portion
of the Collateral pursuant to this Section, Pledgor agrees that, upon request of
Secured Party, Pledgor will, at its own expense:
(i) use
its best efforts to execute and deliver, and cause the Company and the partners
thereof to execute and deliver, all such instruments and documents, and to do or
cause to be done all such other acts and things, as may be reasonably necessary
or, in the opinion of Secured Party, advisable to register such Collateral under
the provisions of the Securities Act, and to cause the registration statement
relating thereto to become effective and to remain effective for such period as
prospectuses are required by law to be furnished, and to make all amendments and
supplements thereto and to the related prospectuses which, in the opinion of
Secured Party, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto;
(ii) execute
and deliver to any Person, entity or Governmental Authority as Secured Party may
choose, any and all documents and writings which, in Secured Party’s reasonable
judgment, may be necessary or appropriate for approval, or be required by, any
regulatory authority located in any city, county, state or country where Pledgor
or the Company engage in business, in order to transfer or to more effectively
transfer the Collateral or otherwise enforce Secured Party’s rights hereunder;
and
(iii) do
or cause to be done all such other acts and things as may be reasonably
necessary to make such sale of the Collateral or any part thereof valid and
binding and in compliance with applicable law.
Pledgor
acknowledges that there is no adequate remedy at law for failure by it to comply
with the provisions of this Section and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section may be specifically enforced.
PLEDGOR
EXPRESSLY WAIVES TO THE MAXIMUM EXTENT PERMITTED BY LAW: (i) ANY CONSTITUTIONAL
OR OTHER RIGHT TO A JUDICIAL HEARING PRIOR TO THE TIME SECURED PARTY DISPOSES OF
ALL OR ANY PART OF THE COLLATERAL AS PROVIDED IN THIS SECTION; (ii) ALL RIGHTS
OF REDEMPTION, STAY, OR APPRAISAL THAT IT NOW HAS OR MAY AT ANY TIME IN THE
FUTURE HAVE UNDER ANY RULE OF LAW OR STATUTE NOW EXISTING OR HEREAFTER ENACTED;
AND (iii) EXCEPT AS SET FORTH IN SUBSECTION (a) OF THIS SECTION 9, ANY
REQUIREMENT OF NOTICE, DEMAND, OR ADVERTISEMENT FOR SALE.
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10.
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Expenses.
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Pledgor
agrees to pay and reimburse Secured Party upon demand for all reasonable costs
and expenses (including, without limitation, reasonable attorneys’ fees and
expenses) that Secured Party may incur in connection with (i) the custody, use
or preservation of, or the sale of, collection from or other realization upon,
any of the Collateral, including the reasonable expenses of re-taking, holding,
preparing for sale or lease, selling or otherwise disposing of or realizing on
the Collateral, (ii) the exercise or enforcement of any rights or remedies
granted hereunder or under the Purchase Agreement or otherwise available to it
(whether at law, in equity or otherwise) relating solely to the Collateral, or
(iii) the failure by Pledgor to perform or observe any of the provisions hereof.
The provisions of this Section shall survive the execution and delivery of this
Agreement, the repayment of any of the Secured Obligations, and the termination
of this Agreement or the Purchase Agreement.
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11.
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Duties of Secured
Party.
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The
powers conferred on Secured Party hereunder are solely to protect his interests
in the Collateral and shall not impose on it any duty to exercise such powers.
Except as provided in Section 9-207 of the Code, Secured Party shall not have
any duty with respect to the Collateral or any responsibility for taking any
necessary steps to preserve rights against any Persons with respect to any
Collateral.
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12.
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Choice of Law and Venue;
Submission to Jurisdiction; Service of
Process.
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(a) THIS
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF
FLORIDA AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN SAID STATE.
Each of Pledgor and Secured Party (a) hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for the Southern
District of Florida and the courts of the State of Florida located in Palm Beach
County, Florida, for the purposes of any suit, action or proceeding arising out
of or relating to this Agreement, and (b) hereby waives, and agrees not to
assert in any such suit, action or proceeding, any claim that he or it is not
personally subject to the jurisdiction of any such court, that the suit, action
or proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper.
(b) NOTHING
IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF SECURED
PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO
PRECLUDE THE ENFORCEMENT BY SECURED PARTY OF ANY JUDGMENT OR ORDER OBTAINED IN
SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN
ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
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13.
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Amendments;
etc.
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No
amendment or waiver of any provision of this Agreement nor consent to any
departure by Pledgor herefrom shall in any event be effective unless the same
shall be in writing and signed by Secured Party, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. No failure on the part of Secured Party to exercise, and no
delay in exercising any right under this Agreement, the Purchase Agreement, or
otherwise with respect to any of the Secured Obligations, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right under this
Agreement, the Purchase Agreement, or otherwise with respect to any of the
Secured Obligations preclude any other or further exercise thereof or the
exercise of any other right. The remedies provided for in this Agreement or
otherwise with respect to any of the Secured Obligations are cumulative and not
exclusive of any remedies provided by law.
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14.
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Notices.
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Any
notices required or permitted to be given under this Agreement (and, unless
otherwise expressly provided therein, under any document delivered pursuant to
this Agreement) shall be given in writing and shall be deemed received (a) when
personally delivered to the relevant party at such party’s address as set forth
below, (b) if sent by mail (which must be certified or registered mail, postage
prepaid), when received or rejected by the relevant party at such party’s
address indicated below, or (c) if sent by facsimile or email transmission, when
confirmation of delivery is received by the sending party:
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If
to Pledgor:
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0000
Xxxxxxxxx Xxxx, Xxxxx 0,
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Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
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Attn: Xxxxx
X. Xxxxxxxxx
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Fax:
(000) 000-0000
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xxxxx.xxxxxxxxx@xxx.xxx
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With
a copy to:
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Block
& Garden, LLP
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0000
Xxxxxx Xxxx
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Xxxxx
000
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Xxxxxx,
Xxxxx 00000
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Attn:
Xxxxxx X. Garden, Esq.
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Fax:
(000) 000-0000
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xxxxxx@xxxxxx.xxx
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If
to Secured Party:
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Xxxxx
X. Xxxxx, Xx.
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0000
X.X. Xxxxxxx Xxxx
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Xxxxxxxx,
Xxxxxxx 00000
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Fax:
(000) 000-0000
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xxxxx.xxxxx@xxxxxxxxxxxxxx.xxx
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With
a copy to:
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Fee
& Xxxxxxxx, P.A.
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0000
X. Xxxxxxxx Xxxxxx
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Xxxxx,
Xxxxxxx 00000
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Attn: Xxxxx
X. Xxxxxxxx, Esq.
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Fax:
(000) 000-0000
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xxxxxxxxx@xxxxxxxxxxx.xxx
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Each
party may change its address for purposes of this Section 14 by proper notice to
the other parties.
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15.
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Continuing Security
Interest.
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This
Agreement shall create a continuing security interest in the Collateral and
shall: (a) remain in full force and effect until the indefeasible payment in
full of the Secured Obligations; (b) be binding upon Pledgor and its successors
and assigns; and (c) inure to the benefit of Secured Party and his successors,
transferees, and assigns. Upon the indefeasible payment and performance in full
of the Secured Obligations, the security interests granted herein shall
automatically terminate and all rights to the Collateral shall revert to
Pledgor. Upon any such termination, Secured Party will, at Pledgor’s expense,
execute and deliver to Pledgor such documents as Pledgor shall reasonably
request to evidence such termination. Such documents shall be prepared by
Pledgor and shall be in form and substance reasonably satisfactory to Secured
Party.
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16.
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Security Interest
Absolute.
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To the
maximum extent permitted by law, all rights of Secured Party, all security
interests hereunder, and all obligations of Pledgor hereunder, shall be absolute
and unconditional irrespective of:
any lack
of validity or enforceability of any of the Secured Obligations or any other
agreement or instrument relating thereto, including the Purchase
Agreement;
any
change in the time, manner, or place of payment of, or in any other term of, all
or any of the Secured Obligations, or any other amendment or waiver of or any
consent to any departure from the Purchase Agreement, or any other agreement or
instrument relating thereto;
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
any other
circumstances that might otherwise constitute a defense available to, or a
discharge of, Pledgor.
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17.
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Headings.
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Section
and subsection headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement or be given any
substantive effect.
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18.
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Severability.
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In case
any provision in or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired
thereby.
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19.
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Counterparts; Facsimile
Execution.
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This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
Agreement. Delivery of an executed counterpart of this Agreement by facsimile
shall be equally as effective as delivery of an original executed counterpart of
this Agreement. Any party delivering an executed counterpart of this Agreement
by facsimile also shall deliver an original executed counterpart of this
Agreement but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability, or binding effect hereof.
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20.
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Waiver of
Marshaling.
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Each of
Pledgor and Secured Party acknowledges and agrees that in exercising any rights
under or with respect to the Collateral, Secured Party: (a) is under no
obligation to marshal any Collateral; (b) may, in his absolute discretion,
realize upon the Collateral in any order and in any manner he so elects; and (c)
may, in his absolute discretion, apply the proceeds of any or all of the
Collateral to the Secured Obligations in any order and in any manner he so
elects. Pledgor and Secured Party waive any right to require the marshaling of
any of the Collateral.
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21.
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Waiver of Jury
Trial.
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PLEDGOR
AND SECURED PARTY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. PLEDGOR AND
SECURED PARTY REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY
AND VOLUNTARILY WAIVES HIS OR ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH
LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED
AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
[Remainder
of page intentionally left blank; signature page to follow.]
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
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PLEDGOR:
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By:
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/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx
X. Xxxxxxxxx,
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Chief
Executive Officer
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SECURED
PARTY:
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||
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/s/ Xxxxx X. Xxxxx, Xx.
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||
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XXXXX X. XXXXX, XX.,
individually
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13
