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EXHIBIT 10.46
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "AGREEMENT"), dated as of August 31, 1998,
is entered into between CHFA, INC., a Delaware corporation (the "PLEDGOR"), and
United American Healthcare Corporation, a Michigan corporation (the "SELLER").
RECITALS
A. Pursuant to the terms of that certain Stock Purchase Agreement (the
"STOCK PURCHASE AGREEMENT") of even date herewith among the Pledgor, the Seller
and Corporate Healthcare Financing, Inc., a Michigan corporation ("the
"COMPANY"), the Pledgor is this day purchasing from the Seller 1000 shares (the
"SHARES") of the capital stock, no par value per share (the "COMMON STOCK"), of
the Company, which represents all of the issued and outstanding Common Stock of
the Company.
B. As part of the consideration under the Stock Purchase Agreement, the
Pledgor is executing and delivering to the Seller a promissory note in the
principal amount of $13,250,000 (the "NOTE").
C. The Company owns Statutory Benefits Management Corporation, a
Michigan corporation ("SBMC"), and United American Network Services, Inc., a
Michigan corporation ("UANS") (the Company, SBMC and UANS hereafter each a "CHF
Entity" and collectively the "CHF Entities").
D. In order to induce the Seller to enter into the Stock Purchase
Agreement and to consummate the transactions contemplated thereby, the Pledgor
is executing and delivering this Agreement to the Seller.
AGREEMENTS
NOW THEREFORE, for valuable consideration, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. (A) Pledge and Grant of
Security Interest. AS SECURITY FOR THE PROMPT AND COMPLETE PAYMENT AND
PERFORMANCE WHEN DUE (WHETHER AT THE STATED MATURITY, BY ACCELERATION OR
OTHERWISE) OF THE OBLIGATIONS (AS DEFINED BELOW), THE PLEDGOR HEREBY
PLEDGES, ASSIGNS, CONVEYS, HYPOTHECATES, SETS OVER AND TRANSFERS TO THE
SELLER, AND HEREBY GRANTS TO THE SELLER A FIRST PRIORITY LIEN ON, AND
SECURITY INTEREST IN, (I) THE SHARES, AND (II) ALL PROCEEDS OF THE SHARES
(OTHER THAN THE DIVIDENDS PERMITTED UNDER SECTION 4(J)(I)), AND ALL
SECURITIES OR OTHER PROPERTY AT ANY TIME AND FROM TIME TO TIME RECEIVABLE
OR OTHERWISE DISTRIBUTED IN RESPECT OF OR IN EXCHANGE FOR ANY OR ALL OF THE
SHARES OR ADDITIONAL SECURITIES (ALL THE STOCK, PROCEEDS AND OTHER ITEMS
REFERRED TO IN CLAUSES (I) AND (II) ABOVE, COLLECTIVELY, THE "Pledged
Securities"). SIMULTANEOUSLY WITH THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE PLEDGOR IS DELIVERING A CERTIFICATE OR CERTIFICATES
REPRESENTING THE SHARES TO THE SELLER, TOGETHER WITH STOCK POWERS EXECUTED
IN BLANK. AS USED IN THIS AGREEMENT, THE TERM "Obligations" MEANS (I) THE
DUE AND PUNCTUAL PAYMENT BY PLEDGOR OF THE UNPAID PRINCIPAL AMOUNT OF, AND
ACCRUED INTEREST ON, THE NOTE, (II) THE DUE AND PUNCTUAL PERFORMANCE BY
PLEDGOR OF ALL OBLIGATIONS OF THE PLEDGOR ARISING UNDER THE NOTE AND THIS
AGREEMENT, AND (III) ANY COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
ALL REASONABLE FEES AND DISBURSEMENTS OF COUNSEL TO THE SELLER) INCURRED IN
THE ENFORCEMENT OR COLLECTION OF THE NOTE AND THIS AGREEMENT.
(b) TRANSFER OF SBMC AND UANS SHARES. The parties
acknowledge and agree that, notwithstanding any other provision of this
Agreement, the Pledgor may, upon written notice to Seller,
(i) either (A) cause a wholly-owned subsidiary
of Pledgor to be incorporated or organized under the laws of any state in the
United States and transfer or cause the transfer of all or any portion of the
stock of SBMC and UANS to such wholly-owned subsidiary which shall then be
deemed a CHF Entity for all purposes under this Agreement, or (B) cause the
transfer of all or any portion of the stock of SBMC and UANS to Pledgor;
(ii) cause all or any portion of the stock of
SBMC or UANS, or cause all or any portion of the assets of SBMC or UANS, to be
sold or otherwise transferred including without limitation through a merger,
consolidation or other form of corporate reorganization (each a "TRANSFER")
either to a third party which is not a Pledgor Affiliate (as defined in Section
6(j)), or to a third party which is not a Pledgor Affiliate (in which Xxxxxxx
Xxxxx may hold an equity interest not exceeding 25% or, in the event the gross
proceeds of the Transfer of SBMC or its assets exceed eleven million dollars
($11,000,000), such greater percentage not to exceed 50% as may have been
negotiated and agreed to by and between Xxxxxxx Xxxxx and the third party), and
in each case the net proceeds of such sale to Pledgor or its wholly-owned
subsidiary, after payment of all costs, expenses and obligations associated with
such sale (including without limitation (x) any obligation to pay a portion of
such sale proceeds (not in excess of 25% of such proceeds or, in the event the
gross proceeds of the Transfer of SBMC or its assets exceed eleven million
dollars ($11,000,000.00), such greater percentage not to exceed 45% as has been
negotiated and agreed to by and between Xxxxxxx Xxxxx and the Company) to
Xxxxxxx Xxxxx and (y) the payment of income tax cost (calculated by using an
effective tax rate equal to the sum of adding the then-effective (i) Federal
capital gain tax rate applicable to such transaction, and (ii) the Maryland
capital gain tax rate applicable to such transaction) to the individual
shareholders of the Pledgor which results from any such sale), shall be paid and
applied in the manner provided in Section 8 of this Agreement;
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(iii) cause all of any portion of the stock of
SBMC or UANS to be Transferred to a Pledgor Affiliate if (x) prior to such sale
all such SBMC or UANS stock shall be pledged to secure the Obligations, and
shall be made subject to the provisions of the Agreement as Pledged Securities
and to the provisions of the Security Agreement of even date herewith (the
"Security Agreement") as Collateral, in each case in a manner reasonably
acceptable to Seller such that Seller suffers or incurs no diminution in its
security position with respect to such stock, and (y) the net proceeds of such
sale, if any, are paid and applied in the manner provided in Section 8 of this
Agreement; and
(iv) cause all or a portion of the assets of SBMC
or UANS to be Transferred to a Pledgor Affiliate, or cause SBMC or UANS to be
merged into or consolidated with a Pledgor Affiliate, if (x) prior to such
Transfer, merger or consolidation either (1) all the stock of such Pledgor
Affiliate shall be pledged to secure the Obligations, and shall be made subject
to the provisions of this Agreement as Pledged Securities and to the Security
Agreement as Collateral, in each case in a manner reasonably acceptable to
Seller such that Seller suffers or incurs no diminution in its security
position, or (2) the SBMC or UANS assets subject to such Transfer, merger or
consolidation shall be subjected to the lien and security interest of the
Security Agreement of even date herewith by and between Pledgor and Seller, and
shall be made subject to the provisions of such Security Agreement as
Collateral, in each case in a manner reasonably acceptable to Seller such that
Seller suffers or incurs no diminution in its security position with respect to
such assets, and (y) the net proceeds of such sale or merger, if any, are paid
and applied in the manner provided in Section 8 of this Agreement.
(c) XXXXXXXX LOAN. The parties acknowledge and agree
that, notwithstanding any other provision of this Agreement, the Pledgor may
borrow Two Million Dollars ($2,000,000.00) from Xxxxx X. Xxxxxxxx pursuant to a
note dated August 31, 1998 (the "XXXXXXXX LOAN").
(d) XXXXXXXX FEE. The parties acknowledge and agree that,
notwithstanding any other provisions of this Agreement, the Pledgor may agree
(the "Credit Facility Agreement") to pay Xxxxxxxx a fee not exceeding $100,000
for each 30 day period (or portion thereof) that Xxxxxxxx' guaranty of the Note
pursuant to that certain Guaranty Agreement dated August 31, 1998 remains
outstanding; provided that such fee may not in the aggregate exceed $700,000;
and provided further that such fee may not be paid unless and until the
Obligations are paid in full.
(e) ADDITIONAL LOANS. The parties acknowledge and agree
that, notwithstanding any other provision of the Agreement, the Pledgor may, in
addition to the Xxxxxxxx Loan, borrow in one or more transactions up to Two
Million Five Hundred Thousand Dollars ($2,500,000) from any one or more of Xxxxx
X. Xxxxxxxx, Xxxxx Xxxxxxxx or Xxxxxx Xxx (collectively, the "Additional Loan").
2. Voting Rights, Etc.
(a) Rights of the Pledgor. UNLESS AND UNTIL AN
EVENT OF DEFAULT (AS DEFINED IN SECTION 5) SHALL HAVE OCCURRED AND SHALL BE
CONTINUING, THE PLEDGOR SHALL BE ENTITLED TO EXERCISE ANY AND ALL VOTING RIGHTS,
CONSENSUAL RIGHTS AND POWERS ACCRUING TO AN OWNER OF THE PLEDGED SECURITIES OR
ANY PART THEREOF FOR ANY PURPOSE NOT INCONSISTENT WITH THE TERMS HEREOF;
PROVIDED, HOWEVER, THAT NO VOTE SHALL BE CAST OR CONSENT, WAIVER OR RATIFICATION
BE GIVEN OR ACTION TAKEN WHICH WOULD IMPAIR THE PLEDGED SECURITIES OR BE
INCONSISTENT WITH OR VIOLATE ANY PROVISION OF THIS AGREEMENT, THE NOTE OR THE
STOCK PURCHASE AGREEMENT; AND
(b) Rights of the Seller. UPON THE OCCURRENCE
AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, ALL RIGHTS OF THE PLEDGOR TO
EXERCISE NOTE VOTING RIGHTS, CONSENSUAL RIGHTS AND POWERS THAT IT IS ENTITLED TO
EXERCISE PURSUANT TO SUBSECTION (A) OF THIS SECTION SHALL CEASE, AND ALL THOSE
RIGHTS SHALL THEREUPON BECOME VESTED IN THE SELLER, WHO SHALL HAVE THE SOLE AND
EXCLUSIVE RIGHT AND AUTHORITY TO EXERCISE THOSE RIGHTS AND POWERS.
3. Representations and
Warranties. THE PLEDGOR HEREBY REPRESENTS AND WARRANTS TO THE SELLER AS OF THE
DATE HEREOF AS FOLLOWS:
(a) Existence, Power and Qualification of the
Pledgor. THE PLEDGOR IS A CORPORATION VALIDLY EXISTING AND IN GOOD STANDING
UNDER THE LAW OF THE STATE OF DELAWARE, HAS FULL CORPORATE POWER AND AUTHORITY
TO ENTER INTO AND PERFORM THIS AGREEMENT, TO CARRY ON ITS BUSINESS AS NOW
CONDUCTED AND TO OWN, LEASE AND OPERATE ITS PROPERTIES AS IT NOW DOES, IS
QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING IN EACH JURISDICTION IN WHICH
THE NATURE OF ITS BUSINESS OR THE PROPERTIES OWNED OR LEASED BY IT REQUIRES
QUALIFICATION.
(B) Title to Pledged Securities. THE PLEDGOR IS THE
LEGAL RECORD AND BENEFICIAL OWNER OF, AND HAS GOOD AND MARKETABLE TITLE TO, THE
PLEDGED SECURITIES, SUBJECT TO NO PLEDGE, LIEN, MORTGAGE, HYPOTHECATION,
SECURITY INTEREST, VOTING AGREEMENT OR TRUST, SHAREHOLDER AGREEMENT, CHARGE,
OPTION OR OTHER ENCUMBRANCE WHATSOEVER (EXCEPT THE LIEN AND SECURITY INTEREST
CREATED BY THIS AGREEMENT AND THE SECURITY AGREEMENT AND THE SECURITY
AGREEMENT).
(c) Authorization. THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT BY THE PLEDGOR HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE ACTION OF THE
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PLEDGOR AND THIS AGREEMENT CONSTITUTES THE VALID AND BINDING OBLIGATION OF THE
PLEDGOR ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT TO THE
EXTENT ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
IN GENERAL AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER
ENFORCEABILITY IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW).
(D) Certificates. PLEDGOR HAS DELIVERED TO SELLER ANY
AND ALL CERTIFICATES OR OTHER INSTRUMENTS OR DOCUMENTS REPRESENTING OR
EVIDENCING THE PLEDGED SECURITIES, TOGETHER WITH CORRESPONDING ASSIGNMENT OR
TRANSFER POWERS DULY EXECUTED IN BLANK BY PLEDGOR.
(E) Security Interest. THE PLEDGE OF THE PLEDGED
SECURITIES IN ACCORDANCE WITH THE TERMS HEREOF CREATES A VALID AND PERFECTED
FIRST PRIORITY SECURITY INTEREST IN THE PLEDGED SECURITIES SECURING PAYMENT OF
THE OBLIGATIONS.
(f) Consents of Third Parties. THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT BY THE PLEDGOR WILL NOT: (I) VIOLATE OR
CONFLICT WITH THE CERTIFICATE OF INCORPORATION OR BY-LAWS OF THE PLEDGOR; (II)
CONFLICT WITH, RESULT IN THE BREACH, TERMINATION OR ACCELERATION OF, OR
CONSTITUTE A DEFAULT UNDER, ANY LEASE, AGREEMENT, COMMITMENT OR OTHER INSTRUMENT
TO WHICH THE PLEDGOR IS A PARTY OR BY WHICH THE PLEDGOR OR ANY OF ITS PROPERTIES
ARE BOUND; (III) CONSTITUTE A VIOLATION Of ANY LAW, REGULATION, ORDER, WRIT,
JUDGMENT, INJUNCTION OR DECREE APPLICABLE TO THE PLEDGOR OR ANY OF ITS
PROPERTIES, OR (IV) RESULT IN THE CREATION OF ANY CLAIM, LIEN, SECURITY INTEREST
OR OTHER ENCUMBRANCE (COLLECTIVELY, "Liens") UPON ANY OF THE PROPERTIES OR
ASSETS OF THE PLEDGOR EXCEPT AS CONTEMPLATED BY THIS AGREEMENT, THE STOCK
PURCHASE AGREEMENT AND THE NOTE.
4. Other Covenants. UNTIL
THIS AGREEMENT HAS BEEN TERMINATED IN ACCORDANCE WITH SECTION 7 HEREOF:
(a) Payment of Obligations. THE PLEDGOR SHALL PAY
PROMPTLY WHEN DUE ALL TAXES, ASSESSMENTS AND GOVERNMENTAL CHARGES OR LEVIES
IMPOSED UPON THE PLEDGED SECURITIES OR IN RESPECT OF ITS INCOME OR PROFITS
THEREFROM, AS WELL AS ALL CLAIMS OF ANY KIND AGAINST OR WITH RESPECT TO THE
PLEDGED SECURITIES, EXCEPT THAT NO SUCH CHARGE NEED BE PAID IF (I) THE VALIDITY
THEREOF IS BEING CONTESTED IN GOOD FAITH BY APPROPRIATE PROCEEDINGS, (II) SUCH
PROCEEDINGS DO NOT INVOLVE ANY MATERIAL DANGER OF THE SALE, FORFEITURE OR LOSS
OF ANY OF THE PLEDGED SECURITIES OR THE PRIORITY OF THE LIEN IN FAVOR OF THE
SELLER THEREON AND (III) SUCH CHARGE IS ADEQUATELY RESERVED AGAINST ON THE
PLEDGOR'S BOOKS IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
("GAAP").
(b) Limitations on Liens on Pledged Securities. THE
PLEDGOR SHALL NOT CREATE, INCUR OR PERMIT TO EXIST, AND WILL DEFEND THE PLEDGED
SECURITIES AGAINST, AND WILL TAKE SUCH OTHER ACTION AS IS NECESSARY TO REMOVE,
ANY LIEN, CLAIM OR OTHER ENCUMBRANCE ON OR TO THE PLEDGED SECURITIES, OTHER THAN
THE LIENS CREATED HEREBY AND THE SECURITY AGREEMENT AND WILL DEFEND THE RIGHT,
TITLE AND INTEREST OF THE SELLER IN AND TO ANY OF THE PLEDGED SECURITIES AND IN
AND TO THE PROCEEDS THEREOF AGAINST THE CLAIMS AND DEMANDS OF ALL PERSONS
WHOMSOEVER.
(c) Limitations on Disposition of Pledged Securities.
THE PLEDGOR SHALL NOT SELL, TRANSFER, LEASE OR OTHERWISE DISPOSE OF ANY OF THE
PLEDGED SECURITIES OR ATTEMPT, OFFER OR CONTRACT TO DO SO WITHOUT THE PRIOR
WRITTEN CONSENT OF THE SELLER. WITHOUT THE PRIOR WRITTEN CONSENT OF THE SELLER,
THE PLEDGOR AGREES THAT IT WILL NOT VOTE TO ENABLE ANY CHF ENTITY TO, OR
OTHERWISE PERMIT ANY CHF ENTITY TO, ISSUE ANY STOCK OR OTHER SECURITIES OF ANY
NATURE IN ADDITION TO OR IN EXCHANGE OR SUBSTITUTION FOR THE PLEDGED SECURITIES.
(D) Payment of Taxes, etc. THE PLEDGOR AGREES TO PAY OR
CAUSE TO BE PAID ALL TAXES, ASSESSMENTS AND OTHER GOVERNMENTAL CHARGES (OTHER
THAN TAXES, ASSESSMENTS AND OTHER GOVERNMENTAL CHARGES WHICH SELLER HAS AGREED
TO PAY OR CAUSE TO BE PAID PURSUANT TO THE STOCK PURCHASE AGREEMENT) LEVIED UPON
ANY OF ITS ASSETS OR THOSE OF ANY CHF ENTITY, OR IN RESPECT OF THEIR RESPECTIVE
FRANCHISES, BUSINESSES, INCOME OR PROFITS, ALL TRADE ACCOUNTS PAYABLE IN
ACCORDANCE WITH USUAL AND CUSTOMARY BUSINESS TERMS, AND ALL CLAIMS FOR WORK,
LABOR OR MATERIALS, WHICH IF UNPAID MIGHT BECOME A LIEN OR CHARGE UPON ANY ASSET
OF THE PLEDGOR OR ANY CHF ENTITY, BEFORE THE SAME BECOME DELINQUENT, EXCEPT THAT
(UNLESS AND UNTIL FORECLOSURE, SALE OR OTHER SIMILAR PROCEEDINGS SHALL HAVE BEEN
COMMENCED) NO SUCH CHARGE NEED BE PAID IF BEING CONTESTED IN GOOD FAITH AND BY
APPROPRIATE MEASURES PROMPTLY INITIATED AND DILIGENTLY CONDUCTED IF (I) SUCH
RESERVE OR OTHER APPROPRIATE PROVISION, IF ANY, AS SHALL BE REQUIRED BY
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GAAP SHALL HAVE BEEN MADE THEREFOR, AND (II) SUCH CONTEST DOES NOT HAVE A
MATERIAL ADVERSE EFFECT ON THE FINANCIAL CONDITION OF THE COMPANY OR THE PLEDGOR
OR THE ABILITY OF THE COMPANY OR THE PLEDGOR TO PAY ANY INDEBTEDNESS AND NO
ASSETS ARE In IMMINENT DANGER OF FORFEITURE.
(E) Liquidation, Dissolution. THE PLEDGOR SHALL NOT
LIQUIDATE, DISSOLVE OR EFFECT A RECAPITALIZATION OR REORGANIZATION IN ANY FORM
OF TRANSACTION AND SHALL NOT CAUSE ANY CHF ENTITY TO LIQUIDATE, DISSOLVE OR
EFFECT A RECAPITALIZATION OR REORGANIZATION IN ANY FORM OF TRANSACTION
(F) Compliance With Laws. THE PLEDGOR SHALL COMPLY, AND
SHALL CAUSE EACH CHF ENTITY TO COMPLY, IN ALL MATERIAL RESPECTS WITH ALL LAWS,
RULES, REGULATIONS, JUDGMENTS, ORDERS AND DECREES OF ANY GOVERNMENTAL OR
REGULATORY AUTHORITY APPLICABLE TO IT AND ITS RESPECTIVE ASSETS, AND WITH ALL
CONTRACTS, AND AGREEMENTS TO WHICH IT IS A PARTY OR SHALL BECOME A PARTY, AND TO
PERFORM ALL OBLIGATIONS WHICH IT HAS OR SHALL INCUR. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, PLEDGOR SHALL, AND SHALL CAUSE EACH OF THE CHF
ENTITIES TO, ESTABLISH, MAINTAIN AND OPERATE ALL BENEFIT PLANS TO COMPLY IN ALL
MATERIAL RESPECTS WITH THE PROVISIONS OF ERISA, THE INTERNAL REVENUE CODE, ALL
THE APPLICABLE LAWS, AND THE REGULATIONS AND INTERPRETATIONS THEREUNDER AND THE
RESPECTIVE REQUIREMENTS OF THE GOVERNING DOCUMENTS FOR SUCH PLANS.
(G) Corporate Existence, Property and Shares. THE
PLEDGOR AGREES TO PRESERVE, PROTECT, AND MAINTAIN, AND CAUSE EACH CHF ENTITY TO
PRESERVE, PROTECT, AND MAINTAIN, (I) ITS CORPORATE EXISTENCE, AND (II) ALL
RIGHTS, FRANCHISES, ACCREDITATIONS, QUALIFICATIONS TO DO BUSINESS, PRIVILEGES,
PERMITS, LICENSES AND PROPERTIES, THE FAILURE OF WHICH TO PRESERVE, PROTECT, AND
MAINTAIN MIGHT HAVE A MATERIAL ADVERSE EFFECT ON THE BUSINESS, AFFAIRS, ASSETS,
PROSPECTS, OPERATIONS, OR CONDITION, FINANCIAL OR OTHERWISE, OF THE PLEDGOR OR
SUCH CHF ENTITY.
(h) Access to Records. PLEDGOR SHALL PERMIT, AND CAUSE
EACH CHF ENTITY TO PERMIT, ANY AUTHORIZED REPRESENTATIVE(S) DESIGNATED BY SELLER
TO VISIT AND INSPECT ANY OF THE PROPERTIES OF PLEDGOR AND OF ANY CHF ENTITY TO
EXAMINE, AUDIT, CHECK AND MAKE COPIES OF THE RESPECTIVE FINANCIAL AND ACCOUNTING
RECORDS, BOOKS, JOURNALS, ORDERS, RECEIPTS AND ANY CORRESPONDENCE AND OTHER DATA
RELATING TO THE RESPECTIVE BUSINESSES OF PLEDGOR AND THE CHF ENTITIES AND TO
DISCUSS THE AFFAIRS, FINANCES AND ACCOUNTS OF PLEDGOR AND THE CHF ENTITIES WITH
THEIR OFFICERS AND INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS, ALL UPON REASONABLE
NOTICE AND AT SUCH REASONABLE TIME, DURING NORMAL BUSINESS HOURS, AS OFTEN AS
MAY BE REASONABLY REQUESTED; PROVIDED, HOWEVER, THAT, EXCEPT AS MAY BE REQUIRED
BY LAW AND EXCEPT FOR INFORMATION WHICH HAS BECOME AVAILABLE TO THE PUBLIC AND
EXCEPT TO ENFORCE THE OBLIGATIONS, SELLER AND EACH SUCH SELLER REPRESENTATIVE
SHALL KEEP ALL INFORMATION LEARNED FROM ANY SUCH ACTIVITY CONFIDENTIAL AND SHALL
NOT DISCLOSE SUCH INFORMATION TO ANY PERSON OR ENTITY.
(i) Books and Records. PLEDGOR SHALL KEEP AND MAINTAIN,
AND CAUSE TO KEEP AND MAINTAIN, IN ALL MATERIAL RESPECTS PROPER BOOKS OF RECORD
AND ACCOUNT IN WHICH ENTRIES IN CONFORMITY WITH GAAP SHALL BE MADE OF ALL
DEALINGS AND TRANSACTIONS IN RELATION TO THEIR RESPECTIVE BUSINESSES AND
ACTIVITIES.
(J) Restricted Dividends; Transactions with Affiliates;
Dealings with Management.
(i) Pledgor shall not, and shall not cause or permit
any CHF Entity to, declare or make any dividend or other distribution to any
shareholder of Pledgor; provided, however, that during each fiscal year of
Pledgor with respect to which a Subchapter S election for Pledgor is in effect,
Pledgor may pay on a quarterly basis (on or before each April 1, June 1,
September 1 and January 1), dividends sufficient to permit the payment by the
stockholders of Pledgor of the federal, state and local income taxes (including
estimated taxes) that are due with respect to the income of Pledgor. Pledgor
shall not enter into any transaction directly or indirectly with (A) any person
or entity that owns or controls (in whole or in part) Pledgor, (B) any spouse,
sibling, parent or child of such person, or (C) any entity owned or controlled
(in whole or in part) by any person or entity described in the preceding clauses
(A) or (B). Pledgor shall not cause or allow any CHF Entity to enter into any
transaction directly or indirectly with (D) Pledgor or (E) any person or entity
directly or indirectly owning or controlling Pledgor (in whole or in part), or
(F) any spouse, sibling, parent or child of any such person or (G) any entity
owned or controlled (in whole or in part) by any person or entity described in
the preceding clauses (D), (E) or (F) (each of the persons or entities described
in clauses (D), (E), (F) or (G) a "PLEDGOR AFFILIATE"). Pledgor shall not
directly or indirectly cause or allow any business of any CHF Entity to be
transferred to, renewed by, or in any other way assumed by, any Pledgor
Affiliate except as provided in Section 1(b)(iii) (to the extent applicable) and
(iv) hereof.
(ii) Pledgor shall not, and shall not cause or allow
any CHF Entity to, (x) except for the Xxxxxxxx Loan, the Additional Loan and the
Credit Facility Agreement, directly or indirectly enter into transaction with
Xxxxx X. Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxx, Xxxxxxx Xxxxx or any other
shareholder of the Pledgor (collectively, Pledgor
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Management") or any spouse, sibling, parent or child of the Pledgor Management
or any other person or entity that owns or controls, or is owned or controlled
by any of the foregoing persons ) in whole or in part), (y) directly or
indirectly make loans to any officer or director of Pledgor or any CHF Entity or
to any member of Pledgor Management (or to any spouse, sibling, parent or child
of any such officer or director or member of CHF Management), or (z) increase
any salary or benefits of any such officer or director over the level of the
salary or benefits existing as of the date hereof. Pledgor shall not pay any
principal or interest or any other amount due under or with respect to the
Xxxxxxxx Loan or the Additional Loan unless and until the Obligations have been
paid in full.
(iii) Notwithstanding the foregoing provisions of the
Section 4(j), Pledgor and the CHF Entities may (w) elect one or more of the
Pledgor Management as officers or directors of Pledgor and/or the CHF Entities,
(x) pay such Pledgor Management salaries and benefits as in effect on the date
hereof (excluding the payment referred to in Section 6(e) of the Employment
Agreements dated May 7, 1993 or any similar payment), (y) reimburse the expenses
incurred by Pledgor Management in the ordinary course of business and (z) pay
the dividend permitted by Section 4(j)(i) hereof.
(iv) The parties recognize and agree that the
foregoing provisions of this Section 4(j) do not preclude members of the Pledgor
Management from reaching any lawful agreement among themselves (without any
commitment or obligation of Pledgor or any CHF Entity) on such matters as they
may desire, including without limitation voting of their stock in the Pledgor.
(k) Indebtedness; Liens. EXCEPT FOR THE XXXXXXXX
LOAN, THE ADDITIONAL LOAN AND THE CREDIT FACILITY AGREEMENT, PLEDGOR SHALL NOT,
NOR SHALL PLEDGOR CAUSE OR ALLOW ANY CHF ENTITY TO, DIRECTLY OR INDIRECTLY
CREATE, INCUR, ASSUME OR OTHERWISE BECOME OR REMAIN DIRECTLY OR INDIRECTLY
LIABLE WITH RESPECT TO ANY INDEBTEDNESS EXCEPT ACCRUED EXPENSES AND CURRENT
TRADE ACCOUNTS PAYABLE INCURRED IN THE ORDINARY COURSE OF BUSINESS. PLEDGOR
SHALL NOT, AND PLEDGOR SHALL NOT CAUSE Or ALLOW ANY CHF ENTITY TO, DIRECTLY OR
INDIRECTLY CREATE, INCUR, ASSUME OR PERMIT TO EXIST ANY LIEN, CLAIM OR
ENCUMBRANCE ON OR WITH RESPECT TO ANY OF THEIR RESPECTIVE PROPERTY OR ASSETS
EXCEPT LIENS CREATED BY THIS AGREEMENT Or THE SECURITY AGREEMENT OR EQUIPMENT
FINANCING LIENS OR PURCHASE MONEY SECURITY INTERESTS CREATED IN THE ORDINARY
COURSE OF ITS BUSINESS.
(l) Minimum Liquidity. PLEDGOR SHALL CAUSE THE CHF
ENTITIES ON A CONSOLIDATED BASIS TO MAINTAIN AT ALL TIMES (I) WORKING CAPITAL IN
AN AMOUNT EXCEEDING $4,000,000, AND (II) A CURRENT RATIO OF 2.00 (IN EACH CASE
AS THE TERMS USED IN CLAUSES (I) AND (II) ARE DETERMINED IN ACCORDANCE WITH GAAP
BUT, FOR PURPOSES OF CALCULATING WORKING CAPITAL AND THE CURRENT RATIO, (X) THE
RECORDING OF REVENUE OF THE CHF ENTITIES SHALL BE EFFECTED IN THE SAME MANNER AS
EFFECTED ON THE DATE OF THIS AGREEMENT, AND (Y) INDEBTEDNESS INCURRED BY PLEDGOR
UNDER THE NOTE AND THE UNSECURED PROMISSORY NOTE OF EVEN DATE HEREWITH (AND ALL
INTEREST THEREON) SHALL BE EXCLUDED FROM SUCH CALCULATION).
(m) Financial Information. THE PLEDGOR WILL DELIVER
TO THE SELLER:
(i) as soon as practicable, and in any event within
forty-five (45) days after the end of each fiscal quarter of the Company, an
unaudited consolidated balance sheet of the CHF Entities as of the end of such
fiscal quarter, and unaudited consolidated statements of income and retained
earnings, and of cash flow of the CHF Entities for such fiscal quarter, prepared
in accordance with GAAP (other than year-end adjustments and footnotes), all in
reasonable detail and certified by the principal financial officer of the
Company;
(ii) as soon as practicable, and in any event within
twenty (20) days after the end of each calendar month of the Company, (A) an
unaudited consolidated balance sheet of the CHF Entities as of the end of such
calendar month, and unaudited consolidated statements of income and retained
earnings, and of cash flow of the CHF Entities for such calendar month and for
the then current fiscal year to date, prepared in accordance with GAAP (other
than year-end adjustments and footnotes), all in reasonable detail and certified
by the principal financial officer of the Company;
(iii)promptly upon receipt thereof, copies of all
management letters, recommendations and reports, if any, submitted to any CHF
Entity by any independent certified public accountants in connection with any
annual or interim review, compilation or audit of any CHF Entity made by such
accountants;
(iv) promptly upon obtaining knowledge of the
occurrence thereof, notice of any event or circumstance (including without
limitation any suit or administrative proceeding or default) which either
individually or together with other events or circumstances may have a material
adverse effect;
(v) with reasonable promptness, all such other data
and information as from time to time may be reasonably requested by the Seller.
Except as required by law and except for information which has become
available to the public and except to enforce the Obligations, Seller shall keep
all information delivered to or obtained by it pursuant to this Section 4(m)
confidential and shall not disclose any such information to any other person or
entity.
(N) Further Documents. PLEDGOR AGREES TO DELIVER TO
SELLER FROM TIME TO TIME UPON REQUEST OF SELLER SUCH DOCUMENTS (REASONABLY
SATISFACTORY IN FORM AND SUBSTANCE TO
6
SELLER) WITH RESPECT TO THE PLEDGED SECURITIES AS SELLER MAY REASONABLY REQUEST
IN ORDER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
5. Events of Default. AN EVENT
OF DEFAULT SHALL BE DEEMED TO HAVE OCCURRED UPON THE OCCURRENCE OF ANY OF THE
FOLLOWING:
(A) ANY REPRESENTATION OR WARRANTY MADE BY PLEDGOR
HEREIN IS FALSE OR MISLEADING IN ANY MATERIAL RESPECT WHEN MADE;
(B) THE DEFAULT BY THE PLEDGOR IN THE OBSERVANCE OR
PERFORMANCE OF ANY OF THE PROVISIONS OF THIS AGREEMENT WHICH DEFAULT SHALL
CONTINUE FOR A PERIOD OF 20 CALENDAR DAYS (30 CALENDAR DAYS IN THE CASE OF THE
COVENANT IN SECTION 4(L)) FOLLOWING WRITTEN NOTICE OF THE DEFAULT GIVEN BY THE
SELLER; OR
(C) THE OCCURRENCE OF ANY EVENT OF DEFAULT (AS
DEFINED IN THE NOTE), INCLUDING, WITHOUT LIMITATION, THE FAILURE BY THE PLEDGOR
TO MAKE ANY PAYMENT OF PRINCIPAL OR INTEREST ON THE NOTE WHEN DUE, BY
ACCELERATION OR OTHERWISE, WITHIN TEN (10) BUSINESS DAYS FOLLOWING NOTICE OF THE
FAILURE GIVEN BY THE SELLER.
6. Remedies, Rights Upon
Default.
(a) Remedies Upon Default. UPON THE OCCURRENCE AND
DURING THE CONTINUATION OF ANY EVENT OF DEFAULT, THE SELLER MAY SELL THE PLEDGED
SECURITIES, OR ANY PART THEREOF, AT PUBLIC OR PRIVATE SALE OR AT ANY BROKER'S
BOARD OR ON ANY SECURITIES EXCHANGE, FOR CASH, UPON CREDIT OR FOR FUTURE
DELIVERY AS THE SELLER SHALL DEEM APPROPRIATE SUBJECT TO THE TERMS HEREOF OR AS
OTHERWISE PROVIDED IN THE MARYLAND UNIFORM COMMERCIAL CODE. THE SELLER SHALL BE
AUTHORIZED AT ANY SUCH SALE (IF IT DEEMS It ADVISABLE TO DO SO) TO RESTRICT THE
PROSPECTIVE BIDDERS OR PURCHASERS TO PERSONS WHO WILL REPRESENT AND AGREE THAT
THEY ARE PURCHASING THE PLEDGED SECURITIES FOR THEIR OWN ACCOUNT FOR INVESTMENT
AND NOT WITH A VIEW TO THE DISTRIBUTION OR SALE THEREOF, AND UPON CONSUMMATION
OF ANY SUCH SALE THE SELLER SHALL HAVE THE RIGHT TO ASSIGN, TRANSFER AND DELIVER
TO THE PURCHASER OR PURCHASERS THEREOF THE PLEDGED SECURITIES SO SOLD. THE
PLEDGOR ACKNOWLEDGES AND AGREES THAT ANY SUCH PRIVATE SALE MAY RESULT IN PRICES
AND OTHER TERMS LESS FAVORABLE TO THE SELLER THAN IF SUCH SALE WERE A PUBLIC
SALE AND, NOTWITHSTANDING SUCH CIRCUMSTANCES, AGREES THAT ANY SUCH PRIVATE SALE
SHALL BE DEEMED TO HAVE BEEN MADE IN A COMMERCIALLY REASONABLE MANNER.
(b) Notice of Sale, Etc. THE SELLER SHALL GIVE THE
PLEDGOR 10 DAYS PRIOR WRITTEN NOTICE OF THE SELLER'S INTENTION TO MAKE ANY SUCH
PUBLIC OR PRIVATE SALE OR SALE AT ANY BROKER'S BOARD OR ON ANY SUCH SECURITIES
EXCHANGE OR OF ANY OTHER DISPOSITION OF THE PLEDGED SECURITIES. SUCH NOTICE, IN
CASE OF PUBLIC SALE, SHALL STATE THE TIME AND PLACE FOR SUCH SALE AND, In THE
CASE OF SALE AT A BROKER'S BOARD OR ON A SECURITIES EXCHANGE, SHALL STATE THE
BOARD OR EXCHANGE AT WHICH SUCH SALE IS TO BE MADE AND THE DAY ON WHICH THE
PLEDGED SECURITIES, OR PORTION THEREOF, WILL FIRST BE OFFERED FOR SALE AT SUCH
BOARD OR EXCHANGE. ANY SUCH PUBLIC SALE SHALL BE HELD AT SUCH TIME OR TIMES
WITHIN ORDINARY BUSINESS HOURS AND AT SUCH PLACE OR PLACES AS THE SELLER MAY FIX
AND SHALL STATE IN THE NOTICE OF SUCH SALE. AT ANY SUCH SALE, THE PLEDGED
SECURITIES, OR PORTION THEREOF, TO BE SOLD MAY BE SOLD IN ONE LOT AS AN ENTIRETY
OR IN SEPARATE PARCELS, AS THE SELLER MAY (IN ITS SOLE AND ABSOLUTE DISCRETION)
DETERMINE. THE SELLER SHALL NOT BE OBLIGATED TO MAKE ANY SALE OF THE PLEDGED
SECURITIES IF IT SHALL DETERMINE NOT TO DO SO, REGARDLESS OF THE FACT THAT
NOTICE OF SALE OF THE PLEDGED SECURITIES MAY HAVE BEEN GIVEN. THE PLEDGOR SHALL
HAVE THE RIGHT TO BID AT ANY PUBLIC OR PRIVATE SALE. THE SELLER 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 MAY, WITHOUT FURTHER NOTICE, BE MADE AT THE TIME AND PLACE
TO WHICH THE SAME WAS SO ADJOURNED. IN CASE SALE OF ALL OR ANY PART OF THE
PLEDGED SECURITIES IS MADE ON CREDIT OR FOR FUTURE DELIVERY, THE PLEDGED
SECURITIES SO SOLD MAY BE RETAINED BY THE SELLER UNTIL THE SALE PRICE IS PAID BY
THE PURCHASER OR PURCHASERS THEREOF, BUT THE SELLER SHALL NOT INCUR ANY
LIABILITY IN CASE ANY SUCH PURCHASER OR PURCHASERS SHALL FAIL TO TAKE UP AND PAY
FOR THE PLEDGED SECURITIES SO SOLD AND, IN CASE OF ANY SUCH FAILURE, SUCH
PLEDGED SECURITIES MAY BE SOLD AGAIN UPON LIKE NOTICE. As AN ALTERNATIVE TO
EXERCISING THE POWER OF SALE HEREIN CONFERRED UPON IT, THE SELLER MAY PROCEED BY
A SUIT OR SUITS AT LAW OR IN EQUITY TO FORECLOSE THIS AGREEMENT AND TO SELL THE
PLEDGED SECURITIES, OR ANY PORTION THEREOF, PURSUANT TO A JUDGMENT OR DECREE OF
A COURT OR COURTS HAVING COMPETENT JURISDICTION.
7
(c) Securities Laws. ALL ACTIONS THAT MAY BE TAKEN
PURSUANT TO THE PROVISIONS OF THIS SECTION 6 ARE SUBJECT IN EVERY INSTANCE TO
STATE AND FEDERAL SECURITIES LAWS.
(d) Application of Proceeds of Sale and Cash. THE
PROCEEDS OF SALE OF THE PLEDGED SECURITIES SOLD PURSUANT TO THIS SECTION 6 SHALL
BE APPLIED BY THE SELLER FIRST TO THE PAYMENT OF COSTS INCURRED PURSUANT TO THIS
SECTION 6 AND THEN TO THE PAYMENT OR REPAYMENT OF THE OBLIGATIONS (AND, UPON
SATISFACTION OF THE OBLIGATIONS, THEREAFTER TO ANY PRINCIPAL, INTEREST OR OTHER
AMOUNTS DUE UNDER THE UNSECURED PROMISSORY NOTE OF PLEDGOR OF EVEN DATE HEREWITH
IN FAVOR OF SELLER IN THE PRINCIPAL AMOUNT OF $2,500,000 IF THERE HAS OCCURRED
(I)(A) ANY FAILURE BY PLEDGOR TO PAY PRINCIPAL, INTEREST OR OTHER AMOUNTS DUE
UNDER THE NOTE OR (B) ANY BREACH BY PLEDGOR OF THE PROVISIONS OF THIS AGREEMENT,
IN EACH CASE WHICH HAS NOT BEEN CURED WITHIN THE APPLICABLE PERIODS SET FORTH IN
THE NOTE OR AGREEMENT OR (II) ANY DEFAULT UNDER SUCH UNSECURED PROMISSORY NOTE
WHICH HAS NOT BEEN CURED WITHIN THE APPLICABLE PERIOD). ANY AMOUNTS REMAINING
AFTER SUCH APPLICATIONS SHALL BE REMITTED TO THE PLEDGOR OR AS A COURT OF
COMPETENT JURISDICTION MAY OTHERWISE DIRECT. ANY SUCH REMITTANCE SHALL BE
WITHOUT RECOURSE UPON OR WARRANTY BY SELLER AND AT THE EXPENSE OF PLEDGOR.
(e) Seller Appointed Attorney-in-Fact. UPON THE
OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, THE PLEDGOR HEREBY
APPOINTS THE SELLER ITS ATTORNEY-IN-FACT FOR THE PURPOSE OF CARRYING OUT THE
PROVISIONS OF THIS AGREEMENT AND THE PLEDGE OF THE PLEDGED SECURITIES HEREUNDER
AND TAKING ANY ACTION AND EXECUTING ANY INSTRUMENT THAT THE SELLER MAY 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 SELLER SHALL HAVE THE RIGHT AND POWER TO RECEIVE, INDORSE AND
COLLECT ALL CHECKS AND OTHER ORDERS FOR THE PAYMENT OF MONEY MADE PAYABLE TO
SUCH PLEDGOR REPRESENTING ANY DIVIDEND OR OTHER DISTRIBUTION PAYABLE IN RESPECT
OF THE PLEDGED SECURITIES OR ANY PART THEREOF AND TO GIVE FULL DISCHARGE FOR THE
SAME.
7. Termination. THIS AGREEMENT,
THE PLEDGE HEREUNDER AND PLEDGOR'S DUTIES, OBLIGATIONS AND COVENANTS HEREUNDER
SHALL TERMINATE WHEN ALL OBLIGATIONS SHALL HAVE BEEN FULLY PAID, AT WHICH TIME
THE SELLER SHALL REASSIGN AND DELIVER TO THE PLEDGOR, OR TO SUCH PERSON OR
PERSONS AS THE PLEDGOR SHALL DESIGNATE, SUCH OF THE PLEDGED SECURITIES (IF ANY)
AS SHALL NOT HAVE BEEN SOLD OR OTHERWISE APPLIED BY THE SELLER PURSUANT TO THE
TERMS OF THIS AGREEMENT, AND SHALL STILL BE HELD BY IT HEREUNDER, TOGETHER WITH
APPROPRIATE INSTRUMENTS OF REASSIGNMENT AND RELEASE. ANY SUCH REASSIGNMENT AND
DELIVERY SHALL BE AT THE EXPENSE OF PLEDGOR. SELLER SHALL RETURN AND DELIVER
SUCH PLEDGED SECURITIES TO PLEDGOR FREE AND CLEAR OF ALL LIENS, CLAIMS AND
ENCUMBRANCES CREATED BY SELLER.
8. Payments Held in Trust. ALL
PAYMENTS RECEIVED BY THE PLEDGOR UNDER OR IN CONNECTION WITH ANY OF THE PLEDGED
SECURITIES (INCLUDING ANY PROCEEDS THEREOF AND ANY NET PROCEEDS OF THE SALE OR
TRANSFER OF THE STOCK OR ASSETS OF SBMC AND UANS OR OF THE MERGER, CONSOLIDATION
OR REORGANIZATION OF SBMC AND UANS, BUT EXCLUDING ANY DIVIDENDS PERMITTED UNDER
SECTION 4(J)(I)) SHALL BE HELD BY THE PLEDGOR IN TRUST FOR THE SELLER, SHALL BE
SEGREGATED FROM OTHER FUNDS OF THE PLEDGOR AND SHALL FORTHWITH UPON RECEIPT BY
THE PLEDGOR BE TURNED OVER TO THE SELLER, IN THE SAME FORM AS RECEIVED BY THE
PLEDGOR (DULY INDORSED BY THE PLEDGOR TO THE SELLER, IF REQUIRED); AND ANY AND
ALL SUCH PAYMENTS SO RECEIVED BY THE SELLER (WHETHER FROM THE PLEDGOR OR
OTHERWISE) MAY, IN THE SOLE DISCRETION OF THE SELLER, BE HELD BY THE SELLER AS
COLLATERAL SECURITY FOR, AND/OR THEN OR AT ANY TIME THEREAFTER APPLIED IN WHOLE
OR IN PART BY THE SELLER, AGAINST ALL OR ANY PART OF THE OBLIGATIONS IN SUCH
ORDER AS THE SELLER SHALL ELECT (AND, UPON SATISFACTION OF THE OBLIGATIONS,
THEREAFTER TO THE PRINCIPAL, INTEREST AND OTHER AMOUNTS DUE UNDER THE UNSECURED
PROMISSORY NOTE DESCRIBED IN THE NEXT SENTENCE IN SUCH ORDER AS THE SELLER SHALL
ELECT IF THE EVENTS DESCRIBED IN THE PARENTHETICAL OF THE NEXT SENTENCE OCCUR).
ANY BALANCE OF SUCH PAYMENTS HELD BY THE SELLER AND REMAINING AFTER PAYMENT IN
FULL OF ALL THE OBLIGATIONS (AND, UPON SATISFACTION OF THE OBLIGATIONS, OF ANY
PRINCIPAL, INTEREST OR OTHER AMOUNTS DUE UNDER THE UNSECURED PROMISSORY NOTE OF
PLEDGOR OF EVEN DATE HEREWITH IN FAVOR OF SELLER IN THE PRINCIPAL AMOUNT OF
$2,500,000 IF THERE HAS OCCURRED (I)(A) ANY FAILURE BY PLEDGOR TO PAY PRINCIPAL,
INTEREST OR OTHER AMOUNTS DUE UNDER THE NOTE OR (B) ANY BREACH BY PLEDGOR OF THE
PROVISIONS OF THIS AGREEMENT, IN EACH CASE WHICH HAS NOT BEEN CURED WITHIN THE
APPLICABLE PERIODS SET FORTH IN THE NOTE OR THIS AGREEMENT OR (II) ANY DEFAULT
UNDER THE UNSECURED PROMISSORY NOTE WHICH HAS NOT BEEN CURED WITHIN THE
APPLICABLE PERIOD) SHALL BE PAID OVER TO THE PLEDGOR OR TO WHOMSOEVER MAY BE
LAWFULLY ENTITLED TO RECEIVE THE SAME.
9. Certain Rights Regarding
Pledged Securities and Obligations. SELLER MAY FROM TIME TO TIME, WHETHER BEFORE
OR AFTER ANY OF THE OBLIGATIONS SHALL BECOME DUE AND PAYABLE, WITHOUT NOTICE TO
PLEDGOR, TAKE ALL OR ANY OF THE FOLLOWING ACTIONS:
8
(A) RETAIN OR OBTAIN A SECURITY INTEREST IN ANY
PROPERTY, IN ADDITION TO THE PLEDGED SECURITIES, TO SECURE ANY OF THE
OBLIGATIONS;
(B) RETAIN OR OBTAIN THE PRIMARY OR SECONDARY LIABILITY
OF ANY PARTY OR PARTIES, IN ADDITION TO PLEDGOR, WITH RESPECT TO ANY OF THE
OBLIGATIONS;
(C) EXTEND OR RENEW FOR ANY PERIOD (WHETHER OR NOT
LONGER THAN THE ORIGINAL PERIOD) OR EXCHANGE ANY OF THE OBLIGATIONS OR RELEASE
OR COMPROMISE ANY OBLIGATION OF ANY NATURE OF ANY PARTY WITH RESPECT THERETO;
(D) SURRENDER, RELEASE OR EXCHANGE ALL OR ANY PART OF
ANY PROPERTY, IN ADDITION TO THE PLEDGED SECURITIES, SECURING ANY OF THE
OBLIGATIONS, OR COMPROMISE OR EXTEND OR RENEW FOR ANY PERIOD ANY OBLIGATIONS OF
ANY NATURE OF ANY PARTY WITH RESPECT TO ANY SUCH PROPERTY; AND
(E) RESORT TO THE PLEDGED SECURITIES FOR PAYMENT OF ANY
OF THE OBLIGATIONS WHICH SHALL HAVE BECOME DUE AND PAYABLE, WHETHER OR NOT IT
SHALL HAVE RESORTED TO ANY OTHER PROPERTY SECURING THE OBLIGATIONS OR SHALL HAVE
PROCEEDED AGAINST ANY PARTY PRIMARILY OR SECONDARILY LIABLE ON ANY OF THE
OBLIGATIONS.
10. Care of Pledged Securities.
SELLER SHALL BE DEEMED TO HAVE EXERCISED REASONABLE CARE WITH RESPECT TO THE
INTEREST OF PLEDGOR IN THE CUSTODY AND PRESERVATION OF THE PLEDGED SECURITIES IF
IT TAKES SUCH ACTION FOR THAT PURPOSE AS PLEDGOR SHALL REQUEST IN WRITING, BUT
FAILURE OF SELLER TO COMPLY WITH ANY SUCH REQUEST SHALL NOT OF ITSELF BE DEEMED
A FAILURE TO EXERCISE REASONABLE CARE, AND NO FAILURE OF THE SELLER TO PRESERVE
OR PROTECT ANY RIGHTS WITH RESPECT TO THE PLEDGED SECURITIES AGAINST PRIOR
PARTIES, OR TO DO ANY ACT WITH RESPECT TO PRESERVATION OF THE PLEDGED SECURITIES
NOT SO REQUESTED BY PLEDGOR, SHALL BE DEEMED A FAILURE TO EXERCISE REASONABLE
CARE IN THE CUSTODY OR PRESERVATION OF THE PLEDGED SECURITIES.
11. Authority of Seller. SELLER
SHALL HAVE AND BE ENTITLED TO EXERCISE ALL SUCH POWERS HEREUNDER AS ARE
SPECIFICALLY DELEGATED TO SELLER BY THE TERMS HEREOF, TOGETHER WITH SUCH POWERS
AS ARE INCIDENTAL THERETO. SELLER MAY EXECUTE ANY OF ITS DUTIES HEREUNDER BY OR
THROUGH AGENTS OR EMPLOYEES AND SHALL BE ENTITLED TO RETAIN COUNSEL AND TO ACT
IN RELIANCE UPON THE ADVICE OF SUCH COUNSEL CONCERNING ALL MATTERS PERTAINING TO
ITS DUTIES HEREUNDER. NEITHER SELLER, NOR ANY DIRECTOR, OFFICER OR EMPLOYEE OF
SELLER, SHALL BE LIABLE FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY IT OR
THEM HEREUNDER OR IN CONNECTION THEREWITH, EXCEPT FOR ITS OR THEIR OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
12. Waivers. THE PLEDGOR HEREBY
WAIVES PRESENTMENT, DEMAND, PROTEST OR NOTICE (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) OF ANY KIND IN CONNECTION WITH THIS AGREEMENT OR ANY PLEDGED
SECURITIES.
13. Amendments, etc. with
Respect to the Obligations. THE PLEDGOR SHALL REMAIN OBLIGATED HEREUNDER, AND
THE PLEDGED SECURITIES SHALL REMAIN SUBJECT TO THE LIEN AND SECURITY INTEREST
GRANTED HEREBY, NOTWITHSTANDING THAT, WITHOUT ANY RESERVATION OF RIGHTS AGAINST
THE PLEDGOR, AND WITHOUT NOTICE TO OR FURTHER ASSENT BY THE PLEDGOR, ANY DEMAND
FOR PAYMENT OF ANY OF THE OBLIGATIONS MADE BY THE SELLER MAY BE RESCINDED BY THE
SELLER, AND ANY OF THE OBLIGATIONS CONTINUED, AND THE OBLIGATIONS OR ANY
COLLATERAL SECURITY OR GUARANTEE THEREFOR OR RIGHT OF OFFSET WITH RESPECT
THERETO MAY FROM TIME TO TIME, IN WHOLE OR IN PART, BE RENEWED, EXTENDED,
AMENDED, MODIFIED, ACCELERATED, COMPROMISED, WAIVED, SURRENDERED, OR RELEASED BY
THE SELLER, AND THE NOTE, AND ANY OTHER DOCUMENTS EXECUTED AND DELIVERED IN
CONNECTION THEREWITH MAY BE AMENDED, MODIFIED, SUPPLEMENTED OR TERMINATED, IN
WHOLE OR PART, AS THE SELLER MAY DEEM ADVISABLE FROM TIME TO TIME, AND ANY
GUARANTEE, RIGHT OF OFFSET OR OTHER COLLATERAL SECURITY AT ANY TIME HELD BY THE
SELLER FOR THE PAYMENT OF THE OBLIGATIONS MAY BE SOLD, EXCHANGED, WAIVED,
SURRENDERED OR RELEASED.
14. Notices. ANY NOTICE OR OTHER
COMMUNICATION UNDER THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE CONSIDERED
GIVEN WHEN MAILED BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO
THE PARTIES AT THE FOLLOWING ADDRESSES (OR AT SUCH OTHER ADDRESS AS A PARTY MAY
SPECIFY BY NOTICE TO THE OTHERS):
If to the Pledgor, to:
CHFA, Inc.
000 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
9
if to the Seller, to:
United American Healthcare Corporation
0000 Xxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
15. Severability. ANY PROVISION
OF THIS AGREEMENT THAT IS PROHIBITED OR UNENFORCEABLE SHALL BE INEFFECTIVE TO
THE EXTENT OF THE PROHIBITION OR UNENFORCEABILITY WITHOUT INVALIDATING THE
REMAINING PROVISIONS HEREOF.
16. No Waiver. THE SELLER SHALL
NOT BY ANY ACT, DELAY, OMISSION OR OTHERWISE BE DEEMED TO HAVE WAIVED ANY OF THE
RIGHTS OR REMEDIES OF THE SELLER HEREUNDER AND NO SUCH WAIVER SHALL BE VALID
UNLESS IN WRITING, SIGNED BY THE SELLER, AND THEN ONLY TO THE EXTENT THEREIN SET
FORTH. NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED, ALTERED,
MODIFIED OR AMENDED EXCEPT BY AN INSTRUMENT IN WRITING, DULY EXECUTED BY THE
PARTY TO BE CHARGED WITH THE WAIVER, ALTERATION, MODIFICATION OR AMENDMENT.
17. Successors and Assigns;
Governing Law. THIS AGREEMENT AND ALL OBLIGATIONS OF THE PLEDGOR HEREUNDER SHALL
BE BINDING UPON THE SUCCESSORS AND ASSIGNS OF THE PLEDGOR, AND SHALL INURE TO
THE BENEFIT OF THE SELLER, AND ITS SUCCESSORS AND ASSIGNS. THIS AGREEMENT SHALL
BE GOVERNED BY AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF MARYLAND APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN
MARYLAND. THE PLEDGOR MAY ASSIGN ITS RIGHTS HEREUNDER TO ITS LENDER MICHIGAN
NATIONAL BANK AND TO ANY SUCCEEDING LENDER.
18. Counterparts. THIS AGREEMENT
MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, ALL OF WHICH WHEN TAKEN TOGETHER
SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT AND ANY OF THE PARTIES HERETO MAY
EXECUTE THIS AGREEMENT BY EXECUTING ANY SUCH COUNTERPART.
