EXHIBIT 10.31
SECURITY AGREEMENT-PLEDGE
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This Security Agreement-Pledge (as it may be amended from time to time, the
"Agreement") is entered into as of the 16th, day of December, 1992, by and
between XXXXXXXX XXXXXXX, a resident of Racine, Racine County, Wisconsin (the
"Pledgor"), wife of Xxxxxxx X. Xxxxxxx, and FIRST INTERSTATE BANK OF TEXAS, N.A.
(together with its successors and assigns, the "Pledgee"). This Agreement is
issued in connection with and pursuant to that certain Second Restated and
Amended Loan Agreement (as it may be amended, modified or restated from time to
time, the "Credit Agreement") dated as of December 16, 1992, by and among IMSL,
Inc. (the "Borrower"), IMSL Acquisition Corp., Inc. and the Pledgee. All
capitalized terms not otherwise defined in this Agreement shall have the
meanings provided in the Credit Agreement.
1. The Security. The Pledgor, as an inducement to the Pledgee to lend
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certain sums to the Borrower and to accept from Xxxxxxx X. Xxxxxxx the Limited
Guaranty Agreement (hereinafter defined) executed by him, as collateral security
for the payment in full, when due, whether at stated maturity by acceleration or
otherwise, and the performance of all Obligations (as such term is hereinafter
defined) hereby pledges to the Pledgee and grants to the Pledgee a security
interest in (i) all securities described in Schedule I attached hereto and made
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a part hereof (the "Pledged Collateral"), this day delivered to and deposited
with the Pledgee, (ii) all securities or other property heretofore delivered or
which shall hereafter be delivered to or come into the possession, custody or
control of the Pledgee in any manner or for any purpose whatever on account of
its interest in the Pledged Collateral during the existence of this Agreement,
and whether held in a general or special account or deposit or for safekeeping
or otherwise, (iii) any cash, any stock rights, rights to subscribe, liquidating
dividends, stock dividends, dividends paid in stock, new securities or other
property which the Pledgor is or may hereafter become entitled to receive on
account of its interest in the Pledged Collateral, such stock or other property,
and (iv) all proceeds of any and all of the foregoing. In the event that the
Pledgor receives any of the foregoing, the Pledgor will immediately deliver it
to the Pledgee (other than cash dividends to the extent permitted in this
Agreement below) to be held by the Pledgee hereunder in the same manner as the
property originally delivered hereunder. The Pledged Collateral, together with
all other items described in (ii) through (iv) of the first section of this
paragraph may be hereinafter collectively called the "Collateral."
2. Obligations. The pledge and security interest granted hereby is to
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secure the payment and performance by Xxxxxxx x. Xxxxxxx ("Guarantor") of his
obligations under that certain Limited Guaranty Agreement executed as of
December 16th, 1992, by Guarantor in favor of Pledgee (herein called the
"Guaranty Agreement"),
guaranteeing the prompt and unconditional payment to Pledgee of up to $1,000,000
in principal amount owing by the Borrower to Pledgee pursuant to that certain
Term Note B dated December 16th, 1992 executed by the Borrower payable to the
order of Pledgee in the original principal amount of $1,300,000, together with
all interest, reasonable attorneys' fees and costs of collection as provided in
the Guaranty Agreement (all of which are herein called the "Obligations").
3. Representations, Warranties and Covenants. The Pledgor hereby
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represents, warrants and covenants as follows:
(a) (i) The Pledgor is the legal and beneficial owner of the
Collateral free and clear of any lien, security interest, option or other charge
or encumbrance except for the security interest created by this Agreement.
(ii) The pledge of the Collateral pursuant to this Agreement
creates a valid and perfected first priority security interest in the Collateral
and the proceeds thereof in favor of Pledgee, securing the payment of the
Obligations.
(iii) No authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required (i) for the pledge by the Pledgor of the Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement by the
Pledgor, or (ii) for the exercise by Pledgee of the rights provided in this
Agreement or the remedies in respect of the Collateral pursuant to this
Agreement.
(b) When, if ever, additional Collateral is delivered to the Pledgee
in accordance with Section 1 hereof, the Pledgor will be the legal and equitable
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owner of such Collateral free and clear of all liens of every kind and nature
including any state or federal tax liens, except for the lien created by this
Agreement and any Permitted Liens; each share of stock comprising such
Collateral will have been duly authorized, valid1y issued and be fully paid and
non-assessable; and the Pledgor will have legal title to such Collateral and
power to pledge, assign and deliver such Collateral in the manner hereby
contemplated.
(c) Without the prior written consent of the Pledgee having been
first obtained, the Pledgor shall not sell, assign, transfer, pledge, mortgage,
hypothecate, dispose or encumber any of its rights in or to the Collateral or
any portion thereof, except for the pledge thereof provided for in this
Agreement.
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(d) Pledgor has and will defend the title to the Collateral and the
liens created hereby against the claim of any Person and will maintain and
preserve such liens until the termination of this Agreement.
(e) No Restriction (defined below) is in effect with respect to the
Collateral, and no Restriction will be in effect with respect to any Collateral
hereafter delivered to the Secured Party. The execution, delivery and
performance of this Agreement (including the exercise of any and all remedies
provided for herein) will not result in or permit the imposition of any
Restriction upon any present or future Collateral. Pledgor shall not cause,
permit or suffer to exist the imposition of any Restriction upon any of the
Collateral. "Restrictions" shall mean any voting agreement, voting trust, proxy,
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power of attorney, dividend order, shareholder agreement, stock transfer
agreement, restrictive bylaw or other document, instrument or agreement, whether
revocable or irrevocable, limiting or affecting the rights of the holder of the
Collateral to vote, transfer, receive dividends or distributions on, or
otherwise enjoy any of the benefits of, the Collateral.
(f) The representations, warranties and covenants set forth in this
Section 3 shall survive the execution and delivery of this Agreement.
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4. Voting Rights; Dividends, Etc.
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(a) So long as no Event of Default shall have occurred and be
continuing:
(i) the Pledgor shall be entitled to exercise any and all
voting and/or consensual rights and powers relating or pertaining to the
Collateral or any part thereof for any purpose not inconsistent with the
terms of this Agreement; provided, however, that the Pledgor shall give the
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Pledgee contemporaneous written notice of the manner in which it intends to
exercise, or the reasons for refraining from exercising, any such right or
power other than with respect to the election of directors and voting with
respect to incidental matters; and
(ii) the Pledgor shall be entitled to receive and retain any and
all ordinary cash dividends payable on the Collateral, but, whether or not
an Event of Default shall have occurred and be continuing, any and all
stock and/or liquidating dividends, distributions in property, returns of
capital or other distributions made on or in respect of the Collateral as a
substitute therefor, whether
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resulting from a subdivision, combination or reclassification of the
outstanding capital stock of any issuer thereof or received in exchange for
other Collateral or any part thereof or as a result of any merger,
consolidation, acquisition or other exchange of assets to which any such
issuer may be a party or otherwise, and any and all cash and other property
received in redemption of or in exchange for any Collateral (either at
maturity, upon call for redemption or otherwise) shall be and become part
of the Collateral and, if received by the Pledgor, shall be held in trust
for the benefit of the Pledgee, and shall forthwith be delivered to the
Pledgee or its designated custodian (accompanied by proper instruments of
assignment and/or stock powers executed by the Pledgor in accordance with
the Pledgee's instructions) to be held as Collateral subject to the terms
of this Agreement.
The Pledgee shall execute and deliver (or cause to be executed and
delivered) to the Pledgor all such proxies, Xxxxxx of attorney, dividend orders,
and other instruments as the Pledgor may request for the purpose of enabling the
Pledgor to exercise the voting and other consensual rights and powers that she
is entitled to exercise pursuant to subsection (i) above and to receive the
dividends which she is authorized to receive and retain pursuant to subsection
(ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of the Pledgor to exercise the voting and other consensual
rights and powers which she is entitled to exercise pursuant to Section 4(a)(i)
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and to receive the dividends which she is authorized to receive and retain
pursuant to Section shall cease upon the giving of notice to such effect by the
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Pledgee, and all such rights shall thereupon, after the giving of such notice by
Pledgee, become vested in the Pledgee who shall, during the continuance of any
Event of Default, have the sole and exclusive right and authority to exercise
such voting and other consensual rights and powers and to receive and hold as
Collateral the dividends which the Pledgor would otherwise be authorized to
retain pursuant to Section 4(a)(ii). Any and all cash and other property paid
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over to or received by the Pledgee pursuant to the provisions of this
Subsection (b) shall be held by the Pledgee as part of the Collateral and be
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applied in accordance with the provisions hereof. If for any reason, any
distribution is received by the Pledgor after the occurrence and during the
continuance of an Event of Default and after the giving of notice as provided in
this paragraph, such distribution shall be received in trust for the benefit of
the Pledgee, be segregated from the other property or funds of the Pledgor, and
be forthwith delivered or otherwise
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transferred to the Pledgee as collateral in the same form as so received (with
any necessary endorsement).
5. Event of Default. For purposes of this Agreement, the term "Event of
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Default" shall mean either the failure of Guarantor to pay any sum due or to
become due under the terms of the Guaranty Agreement or the occurrence of an
"Event of Default" as such term is defined in the Credit Agreement, reference to
which Credit Agreement is hereby made for the definition of such term therein.
6. Remedies Upon Default. If any Event of Default shall have occurred
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and be continuing, then, in addition to those rights set forth in Section 4(b)
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above and in addition to the right to exercise any rights and remedies of a
secured party upon default under the Uniform Commercial Code in effect in the
State of Texas (whether or not the Code is in effect in the jurisdiction where
such rights are exercised), the Pledgee may, at any time, without notice (to the
extent notice is not required by law) and at the expense of the Pledgor, but
shall not be obligated to: (a) collect by legal proceedings or otherwise,
endorse, receive and receipt for all dividends and other sums now or hereafter
payable upon or on account of the Collateral; (b) make any compromise or
settlement deemed desirable or proper by the Pledgee with reference to the
Collateral; (c) participate in any recapitalization, reclassification,
reorganization, consolidation, redemption, stock split, merger or liquidation of
any issuer of securities which constitute Collateral, and in connection
therewith may deposit or surrender control of the Collateral, accept money or
other property in exchange for the Collateral, and take such action as deemed
proper by the Pledgee in connection therewith, and any cash or property received
in exchange for the Collateral shall be applied to satisfy the Obligations; (d)
cause the Collateral to be transferred to the name of the Pledgee or to the name
of a nominee thereof; (e) exercise as to the Pledged Collateral all of the
rights, powers and remedies of an owner necessary to exercise the rights granted
under this Agreement and (f) exercise all other rights and remedies to which the
Pledgee may be entitled as provided in the Credit Agreement at law or in equity.
7. Taxes. The Pledgor agrees to pay prior to delinquency all taxes,
governmental charges, liens and assessments which, if unpaid, would become a
lien against the Collateral, except such as may be contested in good faith and
as to which adequate reserves have been provided for the payment thereof if
required by generally accepted accounting principles, and upon the failure of
the Pledgor to do so the Pledgee at its option may pay any of same for the
account of the Pledgor.
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8. Attorneys' Fees and Expenses. The Pledgor agrees to pay within ten
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(10) days after receipt of written demand from the Bank all reasonable advances,
charges, costs and expenses, including, but not limited to, attorneys' fees
incurred or paid by the Pledgee in (i) exercising or enforcing any right, power
or remedy conferred by this Agreement, (ii) the administration of this
Agreement, (iii) the custody or preservation of, or the sale of collection from
or other realization upon, any of the Collateral, or (iv) the failure of Pledgor
to perform or observe any of the provisions hereof; and all such amounts shall
become a part of the indebtedness secured hereunder and shall be paid to the
Pledgee by the Pledgor, together with interest thereon from the date incurred
until paid by Pledgor accruing at the Default Rate.
9. Sale Of Collateral. Upon the occurrence and during the continuance of
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any Event of Default, the Pledgee shall have all of the rights and remedies of a
Secured Party under the Texas Business and Commerce Code as then in effect in
the State of Texas, and may then, in addition to any right or remedy granted to
the Pledgee under this Agreement, the Credit Agreement, or otherwise afforded at
law or in equity, elect to sell the Collateral, or any part thereof, in one or
more public or private sales or at any broker's board or on any securities
exchange, conducted in a commercially reasonable manner. Unless the Collateral
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, Secured Party will give Pledgor notice of such sale at least
ten (10) days before the date fixed for such sale (which Pledgor agrees is
reasonable notice within the meaning of Section 9.504(c) of the Texas Business
and Commerce Code, as in effect on the date of execution hereof). Any sale shall
be made at a public or private sale at a place to be named in the notice of
sale, and in 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 Collateral or that portion thereof so being sold would first be
offered for sale at such board or exchange. The Pledgee shall be authorized at
any such sale (to the extent it deems it advisable to do so, in its sole
discretion) to restrict the prospective bidders or purchasers to persons who
will represent and agree that they are purchasing the Collateral then being sold
for their own account for investment and not with a view to the distribution or
sale thereof as such terms are defined in the Securities Act of 1933, as amended
from time to time (the "Act"). The Pledgor hereby waives (to the extent
permitted by law) all rights of marshalling, redemption, stay and appraisal
which she now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. At any such sale, the Collateral, or
any portion thereof, may be sold in one lot as an entirety or in separate
parcels, as the Pledgee (in its sole discretion) may determine and (to the
extent permitted by appli-
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cable law) the Pledgee may bid (which bid may be in whole or in part, in the
form of cancellation of indebtedness) for and purchase for its own account the
whole or any part of the Collateral. The Pledgee shall not be obligated to make
any sale of Collateral if it shall determine not to do so, regardless of the
fact that notice of sale of Collateral may have been given. The Pledgee 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 Collateral is made on credit or for future delivery, the Collateral so sold
may be retained by the Pledgee until the sale price is paid by the purchaser or
purchasers thereof, but the Pledgee shall not incur any liability in case any
such purchasers shall fail to take up and pay for the Collateral so sold and, in
the case of any such failure, such Collateral may be sold again upon like
notice. Any sale may be conducted by an auctioneer or by an officer, attorney or
agent of the Pledgee. As an alternative to exercising the power of sale herein
conferred upon it, the Pledgee may (at its sole discretion) proceed by suits at
law or in equity to foreclose the Liens created and evidenced by this Agreement
and to sell the Collateral, or any portion thereof, pursuant to a judgment or
decree of a court of competent jurisdiction.
10. Application of Proceeds of Sale. The proceeds of a foreclosure sale
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or sales shall be applied first to (a) the reasonable expenses of holding,
preparing for sale, selling and the like, reasonable attorneys' fees and legal
expenses incurred by the Pledgee; and then to (b) the obligations secured by the
security interest herein created and the surplus, if any, to the Pledgor or to
such other Persons legally entitled thereto. If after application of all such
proceeds realized upon by the Pledgee, there is a deficiency under the Guaranty
Agreement or hereunder, the Pledgor shall remain liable therefor.
The Pledgor recognizes that the Pledgee may be unable to effect a public
sale of the Collateral by reason of certain prohibitions contained in the Act,
but may be compelled to resort to one or more private sales thereof to a
restricted group of purchasers. The Pledgor agrees that any such private sales
may be at prices and other terms less favorable to the seller than if sold at
public sales and notwithstanding such circumstances, any such private sales
shall be deemed to have been made in a commercially reasonable manner. The
Pledgee shall be under no obligation to order or permit the Collateral to be
sold at a public sale or to delay a sale of any of the Collateral for the period
of time necessary to permit the issuer of such securities to register such
securities under the Act or under applicable state securities laws
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for public sale under the Act, as amended, even if the issuer would agree to do
so.
If, at any time when the Pledgee shall determine to exercise its right to
sell the whole or any part of the Collateral hereunder, such Collateral, or the
part thereof, to be sold shall not, for any reason whatsoever, be effectively
registered under the Act, the Pledgee may, in its sole discretion (subject only
to applicable requirements of law), sell such Collateral, or part thereof, by
private sale in such manner and under such circumstances as the Pledgee may deem
necessary or advisable, but subject to the other requirements of this
Section 10, and shall not be required to effect such registration or to cause
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the same to be effected.
11. No Duty to Give Notice. Etc. The Pledgee shall be under no duty or
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obligation whatsoever to give the Pledgor notice of, or to exercise any
subscription rights or privileges, any rights or privileges to exchange, convert
or redeem or any other rights or privileges relating to or affecting any
Collateral held by the Pledgee. The powers conferred on the Pledgee hereunder
are solely to protect its interest in the Collateral and shall not impose any
duty upon the Pledgee to exercise any such powers. The Pledgee shall be deemed
to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which Pledgee accords its own property; it being
understood that the Pledgee shall not have any responsibility for taking
necessary steps to preserve rights against any parties with respect to any
Collateral.
12. Termination. Until full and complete satisfaction of the Obligations,
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the power of sale and all other rights, powers and remedies granted to the
Pledgee hereunder shall continue to exist and may be exercised by the Pledgee at
the times specified hereunder. Subsequent thereto, the Pledgee shall reassign
and rede-liver, without recourse upon or warranty by the Pledgee and at the
expense of the Pledgor (or cause to be so reassigned and redelivered), to the
Pledgor, or to such Person or Persons as the Pledgor shall designate, against
receipt, such of the Collateral (if any) as shall not have been sold or
otherwise applied by the Pledgee pursuant to the terms hereof and shall still be
held by it hereunder, together with appropriate instruments of reassignment and
release.
13. Attorney-in-Fact. The Pledgor hereby appoints effective upon the
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occurrence of any Event of Default, the Pledgee as the Pledgor's attorney-in-
fact, with full authority in the place and stead of the Pledgor and in the name
of the Pledgor or otherwise,
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from time to time in the Pledgee's discretion to take any action and to execute
any instrument which the Pledgee in its reasonable determination may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation, to receive, indorse and collect all instruments made payable
to the Pledgor representing any dividend or other distribution in respect of the
Pledged Collateral, or any part thereof, and to give full discharge for the
same. Except to the extent otherwise required by applicable law, the Pledgee
shall not be obligated or be deemed to assume any duty or responsibility with
respect to any or all of the Collateral of any nature or kind whatsoever, other
than the physical custody thereof.
14. Exercise of Rights. The rights, powers and remedies given to the
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Pledgee by this Agreement shall be in addition to all rights, powers and
remedies given to the Pledgee by virtue of any applicable statute or rule of
law. Any forbearance or failure or delay by the Pledgee in exercising any right,
power or remedy hereunder shall not be deemed to be a waiver of such right,
power or remedy, and any single or partial exercise of any right, power or
remedy hereunder shall not preclude the further exercise thereof.
15. Further Assurances. The Pledgor agrees to do such further acts and
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things, and to execute and deliver such additional conveyances, assignments,
agreements and instruments, as the Pledgee may at any time reasonably request in
connection with the administration or enforcement of this Agreement or related
to the Collateral, or any part thereof, or in order better to assure and confirm
to the Pledgee its rights, powers and remedies hereunder. The Pledgor hereby
consents and agrees that the issuers of the Collateral or any registrar or
transfer agent or trustees for any of the Collateral shall be entitled to accept
the provisions hereof as conclusive evidence of the right of the Pledgee to
effect any transfer pursuant to Section 9 hereof, notwithstanding any other
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notice or direction to the contrary heretofore or hereafter given by the Pledgor
or any other person to any of such issuers or to any such registrar or transfer
agent or trustees.
16. Savings Clause. The usury savings clause provided in Section 8.6 of
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the Credit Agreement is incorporated by reference into this Agreement and is
made a part hereof for all purposes; it being agreed that all rights and
remedies of the Pledgee hereunder are subject to the terms of such usury savings
clause.
17. Waivers. The Pledgor and any maker, endorser, guarantor, surety or
other party liable in any capacity respecting the Obligations hereby waive, to
the extent permitted by applicable law, demand, notice of intention to
accelerate, notice of acceleration,
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notice of nonpayment, presentment, protest, notice of dishonor and any other
similar notice whatsoever.
18. Severability. Any provision hereof found to be invalid by courts
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having jurisdiction shall be invalid only with respect to such provision (and
then only to the extent necessary to avoid such invalidity). The offending
provision shall be modified to the maximum extent possible to confer upon the
Pledgee the benefits intended thereby. Such provision as modified and the
remaining provisions hereof shall be construed and enforced to the same extent
as if such offending provision (or portion thereof) had not been contained
herein, to the maximum extent possible.
19. Use of Copies. Any carbon, photographic or other reproduction of this
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Agreement or any financing statement signed by the Pledgor is sufficient as a
financing statement for all purposes, including without limitation, filing in
any state as may be permitted by the provisions of the Uniform Commercial Code
of such state.
20. Relationship to Other Agreements. This Agreement and the security
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interests (and pledges and assignments as applicable) herein granted are in
addition to (and not in substitution, novation or discharge of) any and all
prior or contemporaneous security agreements, security interests, pledges,
assignments, liens, rights, titles or other interests in favor of Pledgee or
assigned to the Pledgee by others in connection with the Obligations. All rights
and remedies of the Pledgee in all such agreements are cumulative.
21. Headings and Gender. Paragraph headings in this Agreement are for
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convenience only and shall be given no meaning or significance in interpreting
this Agreement. All words used herein shall be construed to be of such gender or
number as the circumstances require.
22. Amendments. Neither this Agreement nor any of its provisions may be
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changed, amended, modified, waived or discharged orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, amendment, modification, waiver or discharge is sought.
23. Continuing Agreement. The security interest (and pledges and
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assignments as applicable) hereby granted and all of the terms and provisions in
this Agreement shall be deemed a continuing agreement. They shall continue in
full force and effect and remain effective between the parties until the
repayment in full of all Obligations.
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24. Binding Effect. The provisions of this Agreement shall be binding upon
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the successors and assigns of Pledgor and the rights, powers and remedies of the
Pledgee hereunder shall inure to the benefit of the successors and assigns of
the Pledgee; provided, however, nothing herein contained shall permit Pledgor
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to assign, transfer or convey any or all of the Collateral in violation of the
terms of this Agreement or the Credit Agreement.
25. GOVERNING LAW. THIS SECURITY AGREEMENT-PLEDGE SHALL BE GOVERNED BY,
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
EXCEPT TO THE EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA HAY
APPLY.
26. SUBMISSION TQ JURISDICTION. WITH RESPECT TO ANY AND ALL DISPUTES
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ARISING HEREUNDER, OR UNDER ANY OF THE OTHER INSTRUMENTS AND DOCUMENTS EXECUTED
IN CONNECTION HEREWITH OR THEREWITH NOT SETTLED, OR SUBJECT TO ARBITRATION,
PURSUANT TO THE ARBITRATION PROGRAM REFERENCED IN PARAGRAPH 27 HEREOF, THE
PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR HERSELF AND HER PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS SECURITY AGREEMENT-PLEDGE AND ANY DOCUMENT TO WHICH
SHE IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT OF
ANY THEREOF, TO THE NONEXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF TEXAS, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF TEXAS, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS, AND WAIVES ANY OBJECTION THAT SHE MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM AND MAIL), POSTAGE PREPAID, TO HER AT HER ADDRESS
SPECIFIED BESIDE HER SIGNATURE HERETO;
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO
XXX IN ANY OTHER JURISDICTION.
27. Arbitration Program. The parties agree to be bound by the terms and
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provisions of the current Arbitration Program of the Bank which is incorporated
by reference herein and is acknowledged as received by the parties pursuant to
which any and all disputes arising hereunder or under any of the documents and
instruments
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contemplated thereby, or pertaining hereto or thereto, shall be resolved by
mandatory binding arbitration upon the request of any party.
28. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT EXECUTED BY THE PLEDGOR
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REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the 16 day of December, 1992.
--
By /s/ Xxxxxxxx X. Xxxxxxx
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C/
- PLEDGOR -
FIRST INTERSTATE BANK OF TEXAS, N.A.
Title: VP
- PLEDGEE -
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XXX XXXXX XX XXXXXXXXX (S)
(S)
COUNTY OF RACINE (S)
The foregoing was acknowledged before me on the 16th day of December, 1992,
by XXXXXXXX XXXXXXX.
Notary Public in and for The State of Wisconsin
THE STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
The foregoing was acknowledged before me on the 16th day of December,
1992, by _____________________________ , of FIRST INTERSTATE BANK OF TEXAS, a
national ___________________________ , on behalf of id N.A banking association
sa association.
S The State of T E X A S
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SCHEDULE I
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Corporation Certificate Number of
No.
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Shares
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1. St. Xxxx Xxxxxx Land Company 000 00.0000
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December 23, 0000
Xx. Xxxxxxx X. Xxxxxxx
Xxx. Xxxxxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
Re: Pledge of Capital Stock of St. Xxxx Xxxxxx Land Company
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Dear Mr. and Xxx. Xxxxxxx:
First Interstate Bank of Texas, N.A. (the "Bank") understands that
Xxxxxxxx X. Xxxxxxx ("Xxx. Xxxxxxx") has executed the Security Agreement -
Pledge, dated as of December 16, 1992, in favor of the Bank ("Pledge Agreement")
in reliance upon the agreements on the part of the Bank set forth herein. The
Bank hereby acknowledges and agrees that Xxxxxxx X. Xxxxxxx and Xxx. Xxxxxxx are
required to maintain in favor of the Bank a lien on marketable securities with a
combined market value of not less than $1,000,000. In furtherance of the
foregoing, the Bank agrees that upon the consummation of the initial public
offering of the capital stock of the St. Xxxx Xxxx & Exploration Company,
formerly known as St. Xxxx Xxxxxx Land Company (the "Company"), the Bank shall
return to Xxx. Xxxxxxx (or the Company's transfer agent) certificate Number 105
representing 17.7083 shares of capital stock of the Company and, in return
therefor, the Bank understands that it shall receive from Xxx. Xxxxxxx (or the
Company's transfer agent) stock certificates representing capital stock of the
Company with an aggregate market value of not less than $1,000,000; provided,
however, that nothing herein shall be construed as relinquishing the Bank's
security interest in capital stock of the Company owned by Xxx. Xxxxxxx with an
aggregate market value of at least $1,000,000.
Sincerely,
FIRST INTERSTATE BANK OF TEXAS. N.A.
Title:
-15-
