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EXHIBIT 10.47
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of
February 25, 1997, between EDUCATIONAL MEDICAL, INC., a Delaware corporation
(herein called the "Pledgor"), and BANK OF AMERICA, FSB (the "Bank"),
individually and as agent for itself and each "Issuer," as that term is defined
below (the Bank, acting in such capacity, herein called the "Secured Party").
W I T N E S S E T H:
WHEREAS, pursuant to a Business Loan Agreement, dated as of even date
herewith, among Pledgor, its subsidiaries and Secured Party (herein, as the
same may be amended, modified, supplemented or renewed from time to time,
called the "Loan Agreement"; capitalized terms used herein, but not expressly
defined herein, shall have the meanings given to such terms in the Loan
Agreement), the Bank has agreed to extend credit and other financial
accommodations to Borrowers; and
WHEREAS, the Pledgor is the owner of all shares of capital stock of
each Borrower (other than Pledgor), all as specified on Schedule "A" attached
hereto and by reference made part hereof (all such owned shares, together with
other shares delivered or required to be delivered hereunder hereinafter called
the "Pledged Shares"); and
WHEREAS, it is a condition to the making of such financial
accommodations that the Pledgor execute and deliver this Pledge Agreement in
favor of Secured Party and, it being in the Pledgor's best interest that
Borrowers obtain such financial accommodations, Pledgor is willing to execute
and deliver this Pledge Agreement;
NOW, THEREFORE, in consideration of the foregoing, the Pledgor agrees
with Secured Party that:
SECTION 1. Pledge. To secure the due and punctual payment of the
"Secured Obligations" (as hereinafter defined), the Pledgor hereby pledges,
hypothecates, assigns, transfers, sets over and delivers unto Secured Party,
and hereby grants to the Secured Party a security interest in, the following:
(i) the Pledged Shares and the certificates representing the Pledged Shares,
and all cash securities, dividends, rights, and other property at any time and
from time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of the Pledged Shares; (ii) all additional shares
of stock at any time and from time to time acquired by the Pledgor in any
manner, and the certificates representing such additional shares, and also any
cash, securities, dividends, rights, and other property at any time and from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares; and (iii) all other property hereafter
delivered to the Secured Party in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or evidencing such
property and all cash,
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securities, interest, dividends, rights, and other property at any time and
from time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all thereof (all such Pledged Shares, additional
shares, certificates, notes, instruments, cash, securities, interest,
dividends, rights, and other property being herein collectively called the
"Collateral");
TO HAVE AND TO HOLD the Collateral, together with all rights, titles,
interest, privileges, and preferences appertaining or incidental thereto, unto
the Secured Party, its successors and assigns, forever, subject, however, to
the terms, covenants, and conditions hereinafter set forth. As used herein,
the terms "Issuer," "Loan Documents" and "Secured Obligations," shall mean as
follows:
"Issuer" shall mean Bank of America National Trust and Savings
Association, or any affiliate thereof, which at any time or from time
to time issues any letter of credit, banker's acceptance, foreign
exchange contract, interest rate "hedge" or similar agreement, or
otherwise extends any credit or other financial accommodation to, with
or on behalf of Borrowers, or any one or more of them, whether
pursuant to the Loan Agreement or otherwise.
"Loan Documents" shall mean the Loan Agreement and any
document, instrument or agreement, whether now or hereafter existing,
evidencing, giving rise to or otherwise securing any of the Secured
Obligations.
"Secured Obligations" shall mean (i) all of the unpaid
principal amount of, and accrued interest on, the Loans, (ii) all
prepayment, facility commitment and other fees owing under the Loan
Agreement to Bank and (iii) all other debts, liabilities and other
obligations owing at any time or from time to time to the Bank or any
Issuer by the Borrowers, or any one or more of them, whether joint or
several, or as maker, surety, guarantor or otherwise, including any
arising under or in respect of any loan, lease, letter of credit,
banker's acceptance, foreign exchange contract, interest rate "hedge"
agreement or any other similar agreement, whether arising pursuant to
the Loan Agreement or otherwise.
SECTION 2. Warranties and Further Assurances. The Pledgor warrants
to the Secured Party that the Pledgor is, or at the time of any future
delivery, pledge, assignment, or transfer will be, the lawful owner of the
Collateral, free of all claims and liens other than the security interest
hereunder (and those security interests described in Schedule "A" with regard
to certain of the Pledged Shares), with full right to deliver, pledge, assign
and transfer the Collateral to the Secured Party as Collateral hereunder. The
Pledgor agrees to deliver to the Secured Party from time to time upon request
of the Secured Party such stock powers and similar documents, satisfactory in
form and substance to the Secured Party, with respect to the Collateral as the
Secured Party may reasonably request. The Pledgor further agrees not to sell,
assign, exchange, pledge or otherwise transfer or encumber any of its right to
any of the Collateral (except as described in Schedule "A").
SECTION 3. Care of Collateral. The Secured Party shall be deemed to
have exercised reasonable care with respect to the interest of the Pledgor in
the custody and preservation of the
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Collateral if it takes such action for that purpose as the Secured Party takes
customarily with respect to similar property of others in its custody or
control, but no failure of the Secured Party to preserve or protect any rights
with respect to the Collateral against prior parties, or to do any act with
respect to preservation of the Collateral not so requested by the Pledgor,
shall be deemed a failure to exercise reasonable care in the custody of
preservation of the Collateral.
SECTION 4. Certain Rights Regarding Collateral and Secured
Obligations. The Secured Party may from time to time, if a Default (as
hereinafter defined) exists hereunder, without notice to the Pledgor, take all
or any of the following actions: (i) transfer all or any part of the Collateral
into the name of the Secured Party or its nominee, with or without disclosing
that such Collateral is subject to the lien and security interest hereunder,
(ii) notify the parties obligated on any of the Collateral to make payment to
the Secured Party of any amounts due or to become due thereunder, (iii) enforce
collection of any of the Collateral by suit or otherwise, and surrender,
release or exchange all or any part thereof or compromise or extend or renew
for any period (whether or not longer than the original period) any obligations
of any nature of any party with respect thereto, (iv) take control of any
proceeds of the Collateral, and (v) resort to the Collateral for payment of any
of the Secured Obligations whether or not it shall have resorted to any other
property securing the Secured Obligations or shall have proceeded against any
party primarily or secondarily liable on any of the Secured Obligations. The
Secured Party may, furthermore from time to time, whether before or after any
of the Secured Obligations shall become due and payable, without notice to the
Pledgor, take all or any of the following actions: (i) retain or obtain a
security interest in any property, in addition to the Collateral, to secure any
of the Secured Obligations, (ii) retain or obtain the primary or secondary
liability of any party or parties, in addition to the Pledgor with respect to
any of the Secured Obligations, (iii) extend or renew for any period (whether
or not longer than the original period) or exchange any of the Secured
Obligations or release or compromise any obligation of any nature of any party
with respect thereto, and (iv) surrender, release or exchange all or any part
of any property, in addition to the Collateral, securing any of the Secured
Obligations, or compromise or extend or renew for any period any obligations of
any nature of any party with respect to any such property.
SECTION 5. Voting Right and Dividends.
(a) So long as no Default (as hereinafter defined) shall have
occurred and be continuing:
(i) The Pledgor shall have the right to vote the Pledged
Shares in a manner consistent with the terms of the
Loan Agreement and the other Loan Documents;
(ii) If and to the extent permitted under the Loan
Documents, the Pledgor shall be entitled to receive
any and all cash dividends on the Pledged Shares,
which it is otherwise entitled to receive, but any
and all stock and/or liquidating dividends,
distributions in property, returns of capital or
other distributions made on or in respect of the
Pledged Shares, whether resulting from a
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subdivision, combination or reclassification of the
outstanding capital stock of any issuer thereof or
received in exchange for the Pledged Shares or any
part thereof or as a result of any merger,
consolidation, acquisition or other exchange of
assets to which any issuer may be a party or
otherwise, and any and all cash and other property
received in exchange for any Collateral shall be and
become part of the Collateral pledged hereunder and,
if received by the Pledgor, shall forthwith be
delivered to the Secured Party or its designated
nominee (accompanied, if appropriate, by proper
instruments of assignment and/or stock power executed
by the Pledgor in accordance with the Secured Party's
instructions) to be held subject to the terms of this
Pledge Agreement; and
(iii) If the Pledged Shares shall have been registered in
the name of the Secured Party or its subagent, the
Secured Party shall execute and deliver (or cause to
be executed and delivered) to the Pledgor all such
dividend orders and other instruments as the Pledgor
may request for the purpose of enabling the Pledgor
to receive the dividends or other payments which it
is authorized to receive and retain pursuant to
subparagraph (i) above.
(b) Upon the occurrence and during the continuance of a Default:
(i) after written notice from the Secured Party to the
Pledgor, all rights of the Pledgor pursuant to Section 5(a)(i)
to vote the Pledged Shares shall cease and Secured Party or
its designated nominee shall have the sole and exclusive
authority to exercise such rights, (ii) all rights of the
Pledgor pursuant to Section 5(a)(ii) and 5(a)(iii) shall
cease, and (iii) the Secured Party shall have the sole and
exclusive right and authority to receive and retain the
dividends which the Pledgor would otherwise be authorized to
receive and retain pursuant to Section 5(a)(ii) hereof. Any
and all money and other property paid over to or received by
the Secured Party pursuant to the provisions of this paragraph
(b) shall be retained by the Secured Party as additional
Collateral hereunder and be applied in accordance with the
provisions hereof.
SECTION 6. Default.
(a) The occurrence of any of the following shall constitute a
"Default" hereunder: nonpayment, when due, whether by
acceleration or otherwise, of any amount due and payable on
any of the Secured Obligations; an "event of default,"
"default" or similar event or occurrence, howsoever
denominated, at any time arising under any of the Loan
Documents; any representation of the Pledgor contained herein
or given pursuant hereto shall be untrue in any material
respect; or the Pledgor shall default in the performance of
any agreement contained herein which is not cured to Secured
Party's satisfaction within ten (10) days after Pledgor
receives written notice thereof from Pledgor. Upon any such
Default, (i) the Secured Party may exercise from time to time
any rights and remedies available to it under the Uniform
Commercial Code
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as in effect from time to time in Georgia or otherwise
available to it, and (ii) the Secured Party may, without
demand or notice of any kind, appropriate and apply toward the
payment of such of the Secured Obligations, and in such order
or application, as the Secured Party may from time to time
elect, any balances, credits, deposits, accounts or moneys of
the Pledgor then constituting part of, or proceeds from, the
Collateral. If any notification of intended disposition of
any of the Collateral is required by law, such notification
shall be deemed reasonably and properly given if given at
least ten (10) days before such disposition, in the manner
prescribed for the giving of notices in Section 10 below. Any
proceeds of any disposition of Collateral may be applied by
the Secured Party to the payment of expenses in connection
with the Collateral, including reasonable attorneys' fees and
legal expenses, and any balance of such proceeds may be
applied by the Secured Party toward the payment of such of the
Secured Obligations and in such order of application, as
provided in Section 7 hereof. All rights and remedies of the
Secured Party expressed hereunder are in addition to all other
rights and remedies possessed by it, including those under any
other Loan Document. No delay on the part of the Secured
Party in the exercise of any right or remedy shall operate as
a waiver thereof, and no single or partial exercise by the
Secured Party of any right or remedy shall preclude other or
further exercise thereof or the exercise of any other right or
remedy. No action of the Secured Party permitted hereunder
shall impair or affect the rights of the Secured Party in and
to the Collateral.
(b) The Pledgor agrees that in any sale of any of the Collateral
whenever a Default hereunder shall have occurred and be
continuing, the Secured Party is hereby authorized to comply
with any limitation or restriction in connection with such
sale as it may be advised by counsel is necessary in order to
avoid any violation of applicable law (including, without
limitation, compliance with such procedures as may restrict
the number of prospective bidders and purchasers, require that
such prospective bidders and purchasers have certain
qualifications, and restrict such prospective bidders and
purchasers to persons who will represent and agree that they
are purchasing for their own account for investment and not
with a view to the distribution or resale of such Collateral),
or in order to obtain any required approval of the sale or of
the purchaser by any governmental regulatory authority or
official, and the Pledgor further agrees that such compliance
shall not result in such sale being considered or deemed not
to have been made in a commercially reasonable manner, nor
shall the Secured Party be liable or accountable to the
Pledgor for any discount allowed by the reason of the fact
that such Collateral is sold in compliance with any such
limitation or restriction.
SECTION 7. Application of Proceeds of Sale or Cash Held as
Collateral. The proceeds of sale of Collateral sold pursuant to Section 6
hereof and/or, after a Default, the cash held as Collateral hereunder, shall be
applied by the Secured Party as follows:
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First: to payment of the costs and expenses of such sale
actually incurred by Secured Party, including the out-of-pocket
expenses of the Secured Party and the reasonable fees and
out-of-pocket expenses of counsel employed in connection therewith,
and to the payment of all advances made by the Secured Party for the
account of the Pledgor hereunder and the payment of all costs and
expenses incurred by the Secured Party in connection with the
administration and enforcement of this Pledge Agreement, to the extent
that such advances, costs and expenses shall not have been reimbursed
to the Secured Party (it being understood that, as used herein, costs
of "counsel" includes the allocated costs of the Secured Party's
in-house counsel);
Second: to the Bank and each Issuer, as appropriate, in an
amount equal to the then unpaid amount of the Secured Obligations in
such manner and order as they may elect, and if such proceeds shall be
insufficient to pay in full such amount, then to the Bank and each
Issuer ratably in accordance with the then unpaid amounts thereof
owing to them; and
Third: upon full payment and satisfaction of the Secured
Obligations, the balance, if any, of such proceeds shall be paid to
the Pledgor, its successors and assigns, or as a court of competent
jurisdiction otherwise may direct.
SECTION 8. Authority of Secured Party. The Secured Party shall have
and be entitled to exercise all such powers hereunder as are specifically
delegated to the Secured Party by the terms hereof, together with such powers
as are incidental thereto. The Secured Party 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 the Secured Party, nor any
director, officer or employee of the Secured Party, shall be liable for any
action taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willfull misconduct.
The Pledgor hereby agrees to reimburse the Secured Party, on demand, for all
expenses incurred by the Secured Party in connection with the administration
and enforcement of this Agreement (including expenses incurred by any sub-agent
employed by the Secured Party) and agrees to indemnify and hold harmless the
Secured Party and/or any such sub-agent from and against any and all liability
incurred by the Secured Party (or such sub-agent) hereunder or in connection
herewith, unless such liability shall be due to willful misconduct or gross
negligence on the part of the Secured Party or such sub-agent.
SECTION 9. Term of Agreement; Reinstatement. This Pledge Agreement
and the security interests granted hereunder shall remain in full force and
effect until all Secured Obligations have been fully paid and satisfied and all
Loan Documents have been terminated (except for any obligations designated
under any Loan Document as continuing on an unsecured basis). Further this
Agreement shall remain in full force and effect and continue to be effective
should any petition be filed by or against any Borrower for liquidation or
reorganization, should any Borrower become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all
or any significant part of any Borrower's assets, and shall continue to be
effective
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or be reinstated, as the case may be, if at any time payment and performance of
the Secured Obligations, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by
any obligee of the Secured Obligations, whether as a "voidable preference",
"fraudulent conveyance", or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Secured Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
SECTION 10. Notices. Except as otherwise provided herein, whenever
it is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other party, or whenever any of the parties desires to
give or serve upon any other party any other communication with respect to
this Security Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be delivered
in the manner and to the addresses set forth in the Loan Agreement.
SECTION 11. Severability. Any provision of this Pledge Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 12. No Waiver; Cumulative Remedies. Secured Party shall not
by any act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies hereunder, and no waiver shall be valid unless in writing,
signed by Secured Party, and then only to the extent therein set forth. A
waiver by Secured Party of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which Secured Party
would otherwise have had on any future occasion. No failure to exercise nor
any delay in exercising on the part of Secured Party, any right, power or
privilege hereunder, shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or future exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies hereunder provided are cumulative and may
be exercised singly or concurrently, and are not exclusive of any rights and
remedies provided by law. None of the terms or provisions of this Pledge
Agreement may be waived, altered, modified or amended except by an instrument
in writing, duly executed by Secured Party and, where applicable, by Pledgor.
SECTION 13. Successor and Assigns; Governing Law.
A. This Security Agreement and all obligations of
Pledgor hereunder shall be binding upon the successors and assigns of Pledgor,
and shall, together with the rights and remedies of Secured Party hereunder,
inure to the benefit of Bank, the Issuers and the Secured Party and their
respective successors and assigns. No sales of participations, other sales,
assignments, transfers or other dispositions of any agreement governing or
instrument evidencing the Secured Obligations or
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any portion thereof or interest therein shall in any manner affect the security
interest granted to Secured Party hereunder.
B. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY, AND BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA,
WITHOUT REGARD TO THE PROVISIONS THEREOF REGARDING CONFLICTS OF LAWS.
SECTION 14. Further Indemnification. Pledgor agrees to pay, and to
save Secured Party harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all excise, sales or other similar
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Security Agreement.
IN WITNESS WHEREOF, the Pledgor has caused this Pledge Agreement to be
duly executed by its officers thereunto duly authorized as of the date first
above written.
PLEDGOR:
EDUCATIONAL MEDICAL, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
Attest: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Secretary
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SCHEDULE "A"
SCHEDULE OF SHARES OF CAPITAL STOCK
OWNED BY PLEDGOR
Corporation No. Shares Stock Certificate No(s).
----------- ---------- ------------------------
Andon Colleges, Inc.
California Academy
of Merchandising,
Art and Design, Inc.
DBS Acquisition Corp.
ICM Acquisition Corp.
HBC Acquisition Corp.
Maric Learning Systems
MTSX Acquisition Corp.
OIOPT Acquisition Corp.
Palo Vista College of
Nursing and Allied
Health Sciences, Inc.
SACMD Acquisition Corp.
Scottsdale Educational
Center for Allied Health
Careers, Incorporated
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