EXHIBIT 10(xxix)
LIMITED RECOURSE PLEDGE AGREEMENT
THIS LIMITED RECOURSE PLEDGE AGREEMENT in entered into effective as of
September 28, 2001 (as from time to time amended and in effect the "Pledge
Agreement"), between Xxxxx X. Xxxxxx, a Minnesota resident (the "Pledgor"), and
E.mergent, Inc., a Delaware corporation (the "Lender").
STATEMENTS OF FACT
A. Pledgor is obligated to Lender pursuant to that certain promissory
note of even date herewith and in the original principal amount of $121,875.00
(the "Note" or "Obligations").
B. To secure the obligations of Pledgor under and pursuant to the Note,
the Lender has required the Pledgor to convey a nonrecourse first priority
security interest in the shares of Lender's common stock purchased by the
Pledgor with the proceeds of the Note.
Accordingly, the Pledgor hereby agrees with the Lender as follows:
1. PLEDGE. In order to secure the payment and performance of the
Obligations made by the Pledgor in favor of the Lender and of all renewals,
replacements, substitutions and amendments thereof, and to secure performance by
Pledgor of and in consideration of the premises and the terms, agreements,
warranties and covenants of the parties hereinafter set forth, the Pledgor
hereby grants, pledges and gives to the Lender, and his its successors and
assigns, a continuing lien and security interest in all of Pledgor's right,
title and interest, now or hereafter existing in, to and under (a) 150,000
shares of the issued and outstanding shares of common stock of E.mergent, Inc.
owned by Pledgor and represented by certificate number 1192, (b) any and all
cash, additional shares of stock or other securities or property which may be
issued or otherwise acquired or received by the Pledgor in respect of (whether
as dividends or otherwise), in exchange for, or in substitution for such
property, as well as any and all other property which may be delivered to and
held in pledge by the Lender pursuant to the terms hereof (the property
described above in paragraphs (a) and (b) is referred to as the "Pledged
Shares"), and (c) any and all proceeds of the foregoing. The property referred
to above in subparagraphs (a), (b) and (c) is sometimes collectively referred to
herein as the "Collateral."
2. REPRESENTATIONS AND WARRANTIES. The Pledgor expressly represents and
warrants to the Lender as follows:
2.1. The Pledgor has full capacity, power and authority to
execute, deliver and perform this Pledge Agreement and to grant to the Lender a
valid and enforceable first priority lien and security interest in the Pledged
Shares.
2.2. The Pledged Shares, upon delivery to the Lender or its
designee in accordance with the terms hereof, will be duly and validly pledged
to the Lender in accordance with all provisions of applicable law. There are no
options, warrants or similar rights with respect to the Pledged Shares and the
Pledged Shares are not subject to any preemptive rights.
2.3. The Pledgor has and will continue to have good and
marketable title to, and is the legal and beneficial owner of, the Pledged
Shares as well as all other Collateral to be pledged to the Lender pursuant to
the terms of this Pledge Agreement free and clear of all claims, mortgages,
pledges, liens, charges, security interests and encumbrances or equities of any
nature whatsoever, other than as created by this Pledge Agreement.
2.4. Upon the execution and delivery of this Pledge Agreement,
the Lender shall have a valid and enforceable lien and security interest in and
to the Collateral. Such liens and security interests shall have and represent a
first priority lien.
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2.5. The execution, delivery and performance of this Pledge
Agreement and the granting of a valid and enforceable lien and security interest
in the Collateral will not violate (i) any provision of law or any order, rule
or regulation of any court or other governmental agency or authority or
regulatory body, or (ii) any provision of any indenture, agreement, mortgage,
contract or other instrument to which the Pledgor is a party or by which any of
his properties, assets or revenues are bound, or (iii) be in conflict with,
result in a breach of or constitute (with notice or lapse of time or both) a
default under, any such indenture, agreement, mortgage, contract or other
instrument.
2.6. This Pledge Agreement constitutes the legal, valid and
binding obligation of the Pledgor enforceable against him in accordance with its
terms.
2.7. No registration with or consent or approval of, or other
action by any person or corporation or by any Federal, state or other
governmental agency or authority or regulatory body, domestic or foreign, is
required in connection with the execution, delivery and performance of this
Pledge Agreement and the granting of the valid and enforceable first lien and
security interest in the Pledged Shares in favor of the Lender.
2.8. There are no actions, suits or proceedings pending or, to
the knowledge of the Pledgor, threatened against or affecting the Pledgor, at
law or in equity, before any Federal or state court or arbitration board or
before any Federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, that
involve any transactions contemplated hereby or the possibility of any judgment
or liability that might have a material and adverse effect on the value of the
Collateral.
3. COVENANTS. The Pledgor hereby covenants and agrees with the Lender
as follows:
3.1. The Pledgor will cause any additional securities or other
properties issued to or received by the Pledgor with respect to any of the
Collateral, whether for value paid by the Pledgor or otherwise, to be forthwith
deposited with and pledged to the Lender or its designee hereunder, such
additional securities or properties to be accompanied by proper instruments of
assignment duly executed in blank by the Pledgor or as the Lender may, in its
sole and absolute discretion, request.
3.2. The Pledgor agrees, at its sole cost and expense, to
defend the Lender's right, title, lien and security interest in and to the
Collateral against the claims, rights, equities, liens and demands of all
persons.
3.3. Except for (a) the lien and security interest granted by
this Pledge Agreement, and (b) any other security interests in favor of the
Lender, the Collateral is now, and at all times will be, maintained by the
Pledgor free and clear of all senior liens, security interests, charges, claims,
pledges, encumbrances of any nature whatsoever or equities of any kind.
3.4. The Pledgor has made, and will continue to make, payment
or deposit, or otherwise has provided and will provide for the payment, when
due, of all taxes, assessments or contributions or other public or private
charges which have been or may be levied or assessed against the Pledgor with
respect to any of the Collateral, and will deliver to the Lender, on demand,
certificates or other evidence satisfactory to the Lender attesting thereto.
3.5. The Pledgor will, at its sole cost and expense, perform
all acts and execute all documents reasonably requested by the Lender from time
to time to evidence, perfect, maintain or enforce the Lender's perfected lien
and security interest in the Collateral granted hereby, or otherwise in
furtherance of the provisions of this Pledge Agreement, and the transactions
contemplated hereby, including, without limitation, any act which may be
required to effect a sale or other disposition of the Collateral.
3.6. The Pledgor hereby authorizes Lender to take any and all
actions which Pledgor has agreed to perform hereunder upon Pledgor's breach of
any covenant to perform such actions and Pledgor shall
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reimburse the Lender for any and all sums, costs, and expenses which the Lender
has paid, or may pay or incur, pursuant to the provisions of this Pledge
Agreement or in defending, protecting or enforcing this Pledge Agreement or
Pledgor' s covenants hereunder or otherwise in connection with the provisions
hereof, including but not limited to, court costs, collection charges, travel
expenses, reasonable fees and disbursements of the Lender's legal counsel, and
all costs incurred with respect to any sale, transfer or other disposition of
the Collateral, all of which, together with interest at the highest rate then
payable on the Note, shall be included in and be a part of the Obligations and
shall be payable on demand.
3.7. Simultaneously with the execution and delivery of this
Pledge Agreement, the Pledgor shall deliver the Pledged Shares to the Lender
duly endorsed in blank and accompanied by stock powers endorsed in blank with
signatures guaranteed, and such other instruments as the Lender or its legal
counsel may reasonably request in order to effect the pledge to the Lender as
contemplated hereunder. In its sole discretion, the Lender is authorized before
or after a Default to register the Pledged Shares in its own name. In lieu of
the foregoing, Pledgor may upon request hold the Pledged Shares in a brokerage
account acceptable to Lender, provided the brokerage company enters into such
documents and agreements as Lender may reasonably require to ensure that
Lender's security interest in the Pledged Shares remains a perfected first
priority security interest at all times.
4. DEFAULTS. The occurrence off any of the following shall constitute
an event of default (a "Default" or an "Event of Default") under this Pledge
Agreement:
4.1. The failure on the part of the Pledgor to perform, or the
violation of, any provision, agreement, condition, term or covenant of this
Pledge Agreement and any default in any of the terms of the Obligations.
5. VOTING RIGHTS. Subject to Section 6 hereof, and prior to the
occurrence of a Default, the Pledgor shall be entitled to (a) vote the Pledged
Shares; (b) give consents, waivers and ratifications with respect thereto and;
(c) otherwise act with respect to the Pledged Shares as though the Pledgor were
the outright owner thereof; provided however (i) that no vote shall be cast by
the Pledgor; (ii) no consent, waiver or ratification shall be given by the
Pledgor; and (iii) no action shall be taken by the Pledgor which would be
inconsistent with or violate any off the terms or provisions of this Pledge
Agreement, the Obligations or any documents delivered thereunder, if the Lender
has not received notice of the meeting at which the vote is to be taken or of
the solicitation of the consent, waiver or ratification or, if such notice is
received, if the Lender notifies the Pledgor that such vote, consent, waiver or
ratification could, in the judgment of the Lender, have any adverse impact on
the value of the Collateral. Upon the occurrence of a Default and notice thereof
to Pledgor, all rights of the Pledgor under this section 5 shall immediately
cease and all such rights shall immediately become vested in the Lender.
6. REMEDIES UPON DEFAULT. After a Default shall have occurred and
during the continuance of such Default, the Lender may, without notice to or
demand upon the Pledgor, in addition to any other remedies available to a
secured party under applicable law, take the following actions:
6.1. After notice to Pledgor, exercise all voting power with
respect to the Pledged Shares, and in so voting and exercising the powers of an
owner with respect to any of the Pledged Shares, neither the Lender nor any
representative or agent of the Lender, shall be required to attend any meeting
of security holders (except as may be required by applicable corporate law), and
the Lender may vote or act by power of attorney or proxy, and such power off
attorney or proxy may be granted to any person selected by the Lender, and the
Lender may so vote and exercise the powers of an owner with respect to any of
the Pledged Shares for any purpose or purposes which the Lender, in its sole and
absolute discretion, shall deem advisable and in its interests.
6.2. The Lender, at its option, may by its representatives,
agents or otherwise sell, assign and deliver all, or any part, of the
Collateral, including, without limitation, any dividends, payments and other
distributions on or with respect to the Pledged Shares at any broker's board, or
on any securities exchange, at public or private sale, as the Lender may elect,
either for cash or on credit, and for present or future delivery, and for such
price or prices and on such terms as the Lender, in its sole and absolute
discretion, shall deem appropriate, without demand, advertisement or notice of
any kind, (other than the notice specified in Section 6.3
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hereof), all of which, to the extent permitted by law, are hereby
unconditionally and irrevocably waived by the Pledgor. The Lender shall be
authorized at any such sale, in its sole and absolute discretion, to restrict
the prospective bidders or purchasers to persons who will represent and agree
that they are purchasing the Collateral for their own account in compliance with
the applicable Blue Sky laws and Federal Securities Laws (as hereinafter
defined), and upon consummation of any such sale, the Lender shall have the
right to assign, transfer, enforce and deliver to the purchaser or purchasers
thereof, the Collateral so sold. Each purchaser at any such sale shall hold the
property sold to that purchaser free and clear of any claim or right on the part
of the Pledgor, and the Pledgor hereby unconditionally and irrevocably waives,
to the extent permitted by applicable law, all rights of redemption, stay or
appraisal which the Pledgor now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted.
6.3. The Lender shall give the Pledgor ten (10) days' written
notice (which the Pledgor agrees is reasonable notification within the meaning
of Section 9-504(3) of the Uniform Commercial Code as in effect in the State of
Minnesota) of the Lenders intention to make any such public or private sale or
sale at any broker's board or on a securities exchange. Such notice, in case of
a public sale, shall state the time and place for such sale, and, in the case of
a sale at a broker's board or securities exchange, the broker's board or
securities exchange at which such sale is to be made and the day on which the
collateral, or portion thereof, will first be offered for sale. Such notice in
the case of private sale shall contain reasonable notification of the time at
which sale is to be made, or such other language as may be required by Article 9
of the Uniform Commercial Code as in effect in the State of Minnesota. Any such
sale shall be held at such time or times within ordinary business hours and at
such place or places as the Lender shall fix in the notice or publication, if
any, of such sale. At any such sale, the Collateral, or portion thereof to be
sold, may be sold in one lot as an entirety or in separate parcels, as the
Lender may, in its sole and absolute discretion, determine. The Lender shall not
be obligated to make any sale of the Collateral if it shall determine not to do
so, regardless of the fact that notice of sale of the Collateral may have been
given. The Lender may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale, without further notice, may
be made at the time and place to which the same was so adjourned.
In case a sale of all or any part of the Collateral is made on credit
or for future delivery, the Lender shall be under no obligation to retain the
Collateral so sold until the sale price is paid by the purchaser or purchasers
thereof, and the Lender shall not incur any liability in case any such purchaser
or purchasers shall fail to take up and pay for the Collateral so sold and, in
case of any such failure, such Collateral may be sold again.
At any sale made pursuant to this Pledge Agreement; the Lender may bid
for or purchase, free from any rights of redemption, stay or appraisal on the
part of the Pledgor (all said rights being hereby unconditionally and
irrevocably waived and released by the Pledgor to the extent permitted by law),
any part or all of the Collateral offered for sale and may make payment on
account thereof by using any of the Obligations as a credit against the purchase
price, and the Lender may, upon compliance with the terms of the sale, hold,
retain and dispose of such property without further accountability to the
Pledgor.
Subject to the ten (10) day written notice requirement contained in the
first paragraph of this subsection 6.3, a written agreement to purchase all or
any part of the Collateral shall be treated as a sale thereof and the Lender
shall be free to carry out such sale pursuant to such agreement and the Pledgor
shall not be entitled to the return of any Collateral subject thereto,
notwithstanding the remedying of a Default or the payment in full of the
Obligations subsequent to the Lender's entering into such an agreement. As an
alternative to exercising the power of sale herein conferred upon it, the Lender
may proceed by a suit or suits at law or in equity to foreclose against any of
the Collateral pledged pursuant to this Pledge Agreement and to sell the
Collateral, or any portion thereof, pursuant to a judgment or decree of a court
or courts of competent jurisdiction. In the event of any sale or alternative
thereto hereunder, the Lender shall, after deducting all costs and expenses of
every kind for care, safekeeping, collection, sale, delivery, legal proceedings
(including, without limitation, the fees and disbursements of legal counsel) or
otherwise apply the residue of the proceeds of the sale, together with any other
moneys at the time held by it hereunder, as set forth in Section 12 hereof.
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6.4. The Pledgor acknowledges that, simultaneously with the
execution and delivery of this Pledge Agreement, the Lender may be receiving
other security or collateral securing the Obligations. The Pledgor agrees that
the Lender may take action under this Pledge Agreement without taking any action
under any other security, if any, and may exercise its rights and remedies under
this Pledge Agreement and the other security documents in any manner and in any
order that the Lender, in its sole and absolute discretion, deems necessary or
desirable. The Pledgor hereby unconditionally and irrevocably waives any claim
of any nature against the Lender arising from any action the Lender may take
with respect to the Collateral in relation to any collateral it may have under
the other security arrangements.
6.5. All remedies and actions of the Lender hereunder shall be
conducted and carried out in a commercially reasonable manner.
7. SECURITIES LAWS. In the event that a question arises under the
Securities Act of 1933, as now or hereafter in effect, or any similar Federal
statute hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect hereinafter called the "Federal Securities Laws"), with respect to any
disposition of the Pledged Shares, the Pledgor understands that compliance with
the Federal Securities Laws may very strictly limit the Lender's conduct in
attempting to dispose of all or any part of the Pledged Shares and may also
limit the extent to which or the manner in which any subsequent transferee of
any of the Pledged Shares may dispose of the same. There may be other legal
restrictions or limitations affecting the Lender in any attempt to dispose of
all or a part of the Pledged Shares under applicable Blue Sky or other state
securities laws or similar laws analogous in purpose or effect. The Pledgor and
the Lender agree that if, in view of these restrictions, the Lender sells all or
a part of the Pledged Shares at a private sale, the Lender shall not incur any
liability to Pledgor resulting from such restrictions.
8. LENDER APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby irrevocably
appoints the Lender as his attorney-in-fact solely for the purpose of carrying
out the provisions of this Pledge Agreement and taking any action and executing
any instrument which the Lender may, in its sole and absolute discretion, deem
necessary or advisable to accomplish the purposes hereof, which appointment is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, the Lender shall have the right and power, if a Default shall have
occurred, (a) to ask for, demand, collect, xxx for, receive, endorse and collect
all checks and other orders for the payment of money made payable to the Pledgor
representing any interest or dividend or other distribution payable in respect
of the Pledged Shares or any part thereof and to give full discharge for the
same; (b) to give any necessary receipts for amounts collected or received by
the Lender pursuant to this Pledge Agreement and make all necessary transfers of
all or any part of the Collateral in connection with any sale or other
disposition thereof made pursuant to this Pledge Agreement, and for that purpose
to execute all necessary instruments of assignment and transfer; (c) to commence
and prosecute any and all suits, actions or proceedings in law or in equity in
any court of competent jurisdiction to collect or otherwise realize on all or
any part of the Collateral or to enforce any rights in respect thereof; and (d)
to settle, compromise, compound, adjust or defend any actions, suits or
proceedings relating to any or all of the Collateral. The Pledgor hereby
ratifies and confirms all actions performed by the Lender as attorney-in-fact by
virtue of this section 8.
9. WAIVER OF RIGHTS BY PLEDGOR: DELAY NOT A WAIVER.
9.1. To the full extent that it may lawfully so agree, the
Pledgor will not at any time plead, claim or take the benefit of any appraisal,
valuation, stay, extension, moratorium or redemption law, as now or hereafter in
force or effect, in order to prevent or delay the enforcement of this Pledge
Agreement or the sale of all or any portion of the Collateral, or the possession
thereof by any purchaser at any sale; and the Pledgor, for itself, and all
parties claiming by, through and under it, to the extent permitted by law,
hereby unconditionally and irrevocably waives the benefit of' all such laws. The
Pledgor, for itself and all parties claiming, by, through or under it, to the
extent permitted by law, also unconditionally and irrevocably waives all right
to have all or any portion of the Collateral marshaled upon any foreclosure
thereof and agrees that any court having jurisdiction over this Pledge Agreement
may order the sale of all or any portion of the Collateral. Any sale of, or the
grant of options to purchase, or any other realization upon, all or any part of
the Collateral in accordance with this Pledge Agreement shall operate to divest
all right, title, interest, claim and demand, either at law or in equity, of the
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Pledgor in and to the Collateral so sold, optioned or realized upon, and shall
be a perpetual bar both at law and in equity against the Pledgor and against any
and all persons claiming or attempting to claim the Collateral so sold, optioned
or realized upon, or any part thereof, from, through and under the Pledgor.
9.2. To the extent permitted by law, no delay on the Lender's
part in exercising any power of sale, lien, option or other right hereunder, and
no notice or demand which may be given to or made upon the Pledgor with respect
to any power of sale, lien, option or other right hereunder, shall constitute a
waiver thereof, or limit or impair the right of the Lender to take any action or
to exercise any power of sale, lien, option or any other right under this Pledge
Agreement, or otherwise, nor shall any single or partial exercise of any such
power of sale, lien, option or other right preclude any other or further
exercise thereof, or the exercise of any power, lien, option or other right
under this Pledge Agreement or otherwise, all without notice or demand (except
such notice as is otherwise required by this Pledge Agreement) , nor shall any
of the same prejudice the rights of the Lender as against the Pledgor in any
respect.
10. ASSIGNMENT. Subject to the holding of the Pledged Shares in a
brokerage account as provided above, both before and after the occurrence of a
Default, the Lender may hold any of the Pledged Shares, either in its own name
or endorsed or assigned in blank or in the name of any nominee or nominees of
the Lender, as the Lender in its sole and absolute discretion may determine, and
in connection therewith the Lender may deliver any of the Pledged Shares to the
Pledgor, or any transfer agent of the Pledged Shares, as the case may be.
11. REMEDIES. Nothing herein contained shall be deemed to impair in any
manner the absolute right, in accordance with the terms of this Pledge
Agreement, of the Lender to sell, grant options with respect to or otherwise
realize upon all or such portion of the Collateral at such time and in such
order as it may elect, in its sole and absolute discretion, or to enforce any
one or more remedies, individually or cumulatively, relative hereto either
successively or concurrently, and the Pledgor hereby agrees that the liens,
options and other rights hereby given to the Lender shall remain unimpaired and
unprejudiced and that the enforcement of any remedy shall not operate to bar or
estop the Lender from exercising any other right or remedy. Each and every
remedy of the Lender shall be in addition to any other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or otherwise.
12. APPLICATION OF PROCEEDS OF SALE AND OTHER PROPERTY. The proceeds of
any sale of Collateral sold pursuant to this Pledge Agreement shall be applied
by the Lender as follows:
FIRST: to the payment of all costs and expenses incurred by
the Lender in connection with such sale, including, but not
limited to, the reasonable fees and expenses of legal counsel
for the Lender incurred in connection therewith, and to the
payment of all advances made by the Lender hereunder for the
account of the Borrower and the payment of all costs and
expenses paid or incurred by the Lender upon the exercise of
any right or remedy hereunder or under the Obligations; and
SECOND: to the payment in full of accrued interest on the Note
and thereafter to the outstanding principal amount of the
Obligations; and
THIRD: to the payment in full or reduction of the Obligations
(to the extent not previously paid); and
FOURTH: to the payment in full of any and all other amounts
secured by the Collateral and owed by the Pledgor to Lender.
Amounts remaining after payment in full as set forth above shall be remitted to
the Pledgor; provided, that if the Lender shall also have amounts remaining from
the proceeds of the sale of collateral under the other security documents, the
Lender shall remit such amounts in such manner as directed by a court of
competent jurisdiction.
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13. INDEMNIFICATION. The Pledgor agrees to indemnify and hold harmless
the Lender (to the full extent permitted by law) from and against any and all
claims, demands, losses, judgments and liabilities including, without
limitation, liabilities for penalties) of whatever nature with respect to this
Pledge Agreement, and to reimburse the Lender for all reasonable out-of-pocket
costs and expenses, including, without limitation, reasonable legal fees and
disbursements with respect thereto.
14. PLEDGOR NOT DISCHARGED; NONRECOURSE PROVISIONS. The obligations of
the Pledgor under this Pledge Agreement shall be absolute and unconditional,
except as hereinafter specifically provided, and shall remain in full force and
effect without regard to, and, to the extent permitted by law, shall not be
released, discharged or in any way affected by: (a) any amendment, modification
or waiver of any provision of the Obligations or any other security documents,
including, without limitation, any change in the rate of interest thereon; (b)
any exercise or non-exercise of any right, remedy, power or privilege under or
in respect to this Pledge Agreement, the Obligations, any other security
document, or any other agreement or any other instrument related thereto, or
with respect to applicable law, including, without limitation, any failure of
the Lender to exercise any right of setoff, in whole or in part, with respect to
any balance of any deposit account or credit on its books in favor of the
Pledgor or any other person or any waiver, consent, extension, indulgence or
other action or inaction in respect of any thereof; (c) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding of, or affecting, the Pledgor; or (d) any other act or
thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of the Pledgor or would otherwise
operate as a discharge of the Pledgor as a matter of law.
Notwithstanding anything contained in this Pledge Agreement to the
contrary, the Lender expressly agrees that the personal liability of the Pledgor
for the principal balance (but not for accrued and unpaid interest) under the
Obligations and this Pledge Agreement shall be strictly and absolutely limited
to Pledgor's interest in the Collateral, and the holder agrees not to seek to
procure payment out of any other assets of the Pledgor or to seek any judgment
for any deficiency remaining after foreclosure of or exercise of the power of
sale contained in this Pledge Agreement. The accrued and unpaid interest on the
Obligations shall be full recourse. Nothing in this paragraph shall be deemed to
be a release or impairment of the indebtedness evidenced by the Note or the
security therefore intended by this Pledge Agreement, or be deemed to preclude
the holder from foreclosing (including judicial foreclosure) or exercising the
power of sale under this Pledge Agreement, or be deemed to release, affect or
impair the validity or enforceability of the lien or security interests created
by this Pledge Agreement. Notwithstanding the foregoing, it is expressly
understood and agreed that the aforesaid limitation on liability shall in no way
affect or apply to the Pledgor's continued person liability for:
(1) Fraud or material misrepresentation made in connection
with the Note or any instrument governing, securing or pertaining to
the payment hereof including this Pledge Agreement; and
(2) All court costs and reasonable attorneys' fees incurred in
the enforcement of the Note or this Pledge Agreement.
15. TERMINATION. Notwithstanding any prior or existing Default under
this Pledge Agreement or any other agreement between and among Pledgor and/or
the Lender, specifically including but not limited to the Obligations, the lien
and security interests created by this Pledge Agreement shall terminate on the
date when all obligations under the Obligations shall have been paid in full,
upon which event the Lender shall promptly reassign and redeliver (or cause to
be so promptly reassigned and redelivered), without recourse upon or warranty by
the Lender, and at the sole expense of the Pledgor, to the Pledgor against
receipt therefor, such of the Collateral (if any) as shall not have been sold or
otherwise applied by the Lender pursuant to the terms hereof and not theretofore
reassigned and redelivered to the Pledgor, together with appropriate instruments
of reassignment and release.
16. JURISDICTION. The Pledgor irrevocably agrees that any legal action,
suit or proceeding against it with respect to its obligations, liabilities or
any other matter under or arising out of or in connection with this Pledge
Agreement, or the Obligations or for recognition or enforcement of any judgment
rendered in any such action, suit or proceeding may be brought in the United
States District Court for the District of Minnesota or in
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the courts of the State of Minnesota, as the Lender may, in its sole and
absolute discretion elect, and by execution and delivery of this Pledge
Agreement, the Pledgor hereby unconditionally and irrevocably accepts and
submits to the jurisdiction of each of the aforesaid courts generally and
unconditionally with respect to any such action, suit, or proceeding for himself
and in respect of his property, assets and revenues. Nothing herein shall, or
shall be construed so as to, limit the right of the Lender to bring actions,
suits or proceedings with respect to the obligations and liabilities of the
Pledgor under, or any other matter arising out of or in connection with, this
Pledge Agreement, or the Obligations or for recognition or enforcement of any
judgment rendered in any such action, suit or proceeding, in the courts of any
jurisdiction in which any office of the Lender may be located or any assets,
properties or revenues of the Borrower or Pledgor may be found or as the Lender
shall otherwise deem appropriate.
In addition, the Pledgor irrevocably and unconditionally waives any
objection that it may now or hereafter have to the laying of venue of any of the
aforesaid actions, suits or proceedings brought in any of the aforesaid courts,
and further irrevocably and unconditionally waives and agrees not to plead or
claim that any such action, suit or proceeding brought in any of the aforesaid
courts has been brought in an inconvenient forum. The Pledgor hereby further
irrevocably and unconditionally waives any right that it may have to assert that
it, or any of its properties, assets or revenues is entitled to immunity from
suit, attachment or execution, except as otherwise specifically provided herein.
17. MISCELLANEOUS.
17.1. Any provision of this Pledge Agreement prohibited by the
laws of any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition, or modified to conform with such laws, without
invalidating the remaining provisions of this Pledge Agreement, and any such
prohibition in one jurisdiction shall not invalidate such provision in any other
jurisdiction. If such prohibition or unenforceability has an economic effect
adverse to the Lender, then the parties shall negotiate in good faith an
equivalent economic benefit to the Lender.
17.2. The Pledgor hereby releases the Lender from all claims,
causes of action and demands at any time arising out of or with respect to this
Pledge Agreement, the Obligations, the Notes, the Collateral or any actions
taken or omitted to be taken by the Lender with respect thereto, occurring or
accruing from and after the date hereof, and the Pledgor hereby agrees to hold
the Lender harmless from and with respect to any and all such claims, causes of
action and demands. The Lender's prior recourse to any Collateral shall not
constitute a condition of any demand, suit or proceeding for payment or
collection of the Obligations. The Pledgor hereby unconditionally and
irrevocably waives presentment, notice of dishonor and protest of any
instruments included in or evidencing any of the obligations or the Collateral.
17.3. All notices, consents, and other communications
hereunder shall be in writing and shall be deemed to have been received by a
party hereto and to be effective on the banking day when delivered personally or
when mailed by first-class certified or registered mail, return receipt
requested, three (3) banking days after such mailing, to a party at the address
set forth below (or such other address as a party, may designate by notice to
the others pursuant hereto):
If to the Lender, to it: E.mergent, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
with a copy to: Xxxxx X. Xxxxxx, Esq.
1100 International Centre
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
If the Pledgor to it at: Xxxxx X. Xxxxxx
00 Xxxxxxx 00 Xxxx
Xxxxxxxx, XX 00000
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17.4. This Pledge Agreement shall be governed by and construed
in accordance with the laws of the State of Minnesota applicable to agreements
made and to be performed therein.
17.5. This Pledge Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns;
provided. however, that the Pledgor shall not assign any of its rights, or
delegate any of its duties or obligations under this Pledge Agreement without
the prior written consent of the Lender.
17.6. The failure of a party to insist upon strict adherence
to any term of this Pledge Agreement on any occasion shall not be considered a
waiver thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Pledge Agreement. Any
waiver must be in writing and be signed by the party or parties against whom the
waiver is sought.
17.7. This Pledge Agreement supersedes all prior agreements
among the parties with respect to its subject matter, is intended as a complete
and exclusive statement of the terms and the agreement among the parties with
respect thereto, and cannot be amended, modified, changed or terminated except
by a written instrument executed by the party or parties against whom
enforcement thereof is sought.
17.8. This Pledge Agreement shall be a continuing agreement in
every respect until the Obligations and all other amounts owed Lender by Pledgor
have been satisfied in their entirety.
17.9. This Pledge Agreement may be executed by the parties
hereto in any number of counterparts, no one of which need to be executed by all
or more than one of the parties hereto; and when this Pledge Agreement has been
executed by all of the parties hereto, each of said counterparts shall be deemed
an original, and all of such counterparts together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the Pledgor and the Lender have executed this
Pledge Agreement as of the day and year above written.
PLEDGOR:
/s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
LENDER:
E.MERGENT, INC.
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Its Director
-------------------------------
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