Exhibit 10.24
BORROWER AMENDED AND RESTATED PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT dated as of August 19, 1996 by and between SC REALTY
INCORPORATED (the "Pledgor") and XXXXX FARGO REALTY ADVISORS FUNDING,
INCORPORATED, as Agent (the "Pledgee").
WHEREAS, pursuant to that certain Amended and Restated Credit Agreement
dated as of February 17, 1995, as amended prior to the date hereof (the
"Existing Credit Agreement") by and among the Pledgor, the financial
institutions party thereto and their assignees under Section 9.8 thereof (the
"Lenders"), and the Pledgee, the Lenders extended certain financial
accommodations to the Pledgor;
WHEREAS, as security for its obligations owing to the Lenders and the
Pledgee under the Existing Credit Agreement, the Pledgor entered into that
certain Borrower Amended and Restated Pledge Agreement dated as of February 17,
1995 (the "Existing Pledge Agreement") by and between the Pledgor and the
Pledgee;
WHEREAS, the Pledgor, the Pledgee and the Lenders are to amend and restate
the terms of the Existing Credit Agreement pursuant to the terms of that certain
Amended and Restated Credit Agreement dated as of the date hereof (as the same
may be amended, supplemented, restated or otherwise modified from time to time
in accordance with its terms, the "Credit Agreement"), by and among the Pledgor,
the Lenders and the Pledgee;
WHEREAS, the Pledgor, the Pledgee and the Lenders desire to amend and
restate the terms of the Existing Pledge Agreement pursuant to the terms hereof;
and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement and the extension of financial accommodations under the Credit
Agreement, that the Pledgor execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Pledge. The Pledgor hereby pledges, hypothecates, assigns,
transfers, sets over and delivers unto the Pledgee for the benefit of the
Lenders, and grants to the Pledgee for the benefit of the Lenders a security
interest in, all of the Pledgor's right, title and interest in, to and under the
following (collectively, the "Pledged Collateral"): (a) all of the capital
stock, shares (as defined in Md. Corps & Ass'ns Code Xxx. (S)8-101(c)),
beneficial interest in real estate investment trusts or other trusts, equity
interests and other securities (collectively, "Securities") of each Issuer as
set forth in Schedule 1 attached hereto (collectively, the "Pledged Shares");
(b) such additional Securities of such Issuers as may from time to time be
issued to the Pledgor or otherwise acquired by the Pledgor; (c) any additional
Securities of any Issuer as may hereafter at any time be delivered to the
Pledgee by or on behalf of the Pledgor; (d) any cash or additional Securities
or other property at any time and from time to time receivable or otherwise
distributable in respect of, in exchange for, or in substitution of, any of the
property referred to in clauses (a), (b), and (c) above; and (e) any and all of
the proceeds of any of the foregoing, together with and all other rights,
titles, interests, powers, privileges and preferences pertaining to said
property.
Section 2. Obligations Secured. This Agreement is made, and the security
interest created hereby is granted to the Pledgee for the benefit of the
Lenders, to secure the prompt performance and payment in full of the following
(collectively, the "Secured Obligations"): (a) all Revolving Loans and the Term
Loan; (b) all obligations of the Pledgor under the Credit Agreement, the Notes,
this Agreement and the other Loan Documents; (c) any reasonable costs or
expenses incurred by the Pledgee or Pledgee's counsel in connection with the
realization of the security for which this Agreement provides, including,
without limitation, any reasonable costs or expenses of any proceedings to which
this Agreement may give rise and (d) all other Obligations.
Section 3. Representations and Warranties. The Pledgor hereby represents
and warrants to the Pledgee and the Lenders as follows:
(a) Title and Liens. The Pledgor is the legal and beneficial owner of the
Pledged Collateral and none of the Pledged Collateral is subject to any Lien
other than Permitted Liens. No financing statement under the Uniform Commercial
Code of any jurisdiction which names the Pledgor as debtor or covers any of the
Pledged Collateral, or any other notice filed in the public records indicating
the existence of a Lien thereon, has been filed and is still effective in any
state or other jurisdiction, other than Uniform Commercial Code financing
statements filed in favor of the Pledgee, and the Pledgor has not signed any
such financing statement or notice or any security agreement authorizing the
filing of any such financing statement or notice, other than Uniform Commercial
Code financing statements filed in favor of the Pledgee.
(b) Name; Chief Executive Office. The correct corporate name of the Pledgor
is set forth in the first paragraph of this Agreement. The chief executive
office and principal place of business of the Pledgor, and the Pledgor's books
and records relating to the Pledged Collateral, are located at 0000 Xxxxxx
Xxxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx 00000. The Pledgor
has no other offices or places of business.
(c) Securities Duly Issued. All of the Securities pledged hereunder are and
shall be duly authorized, issued and outstanding and are and shall be fully paid
and non-assessable.
Section 4. Covenants. The Pledgor hereby unconditionally covenants and
agrees as follows:
-2-
(a) No Liens; No Sale of Pledged Collateral. The Pledgor will not create,
assume, incur or permit or suffer to exist or to be created, assumed or
incurred, any Lien on any of the Pledged Collateral (or any interest therein),
other than Permitted Liens, and will not, without the prior written consent of
the Pledgee, sell, lease, assign, transfer or otherwise dispose of all or any
portion of the Pledged Collateral (or any interest therein).
(b) Change of Locations, Name, Etc. Without giving the Pledgor at least
thirty-day's prior written notice, the Pledgor will not (i) change the Pledgor's
chief executive office, principal place of business, or the location of its
books and records relating to the Pledged Collateral or (ii) change its name,
identity or structure.
Section 5. Additional Shares. The Pledgor agrees that, until this
Agreement has terminated in accordance with its terms, any additional Securities
of an Issuer at any time issued to the Pledgor or otherwise acquired by the
Pledgor shall be delivered or otherwise transferred to the Pledgee as soon as
practicable, but in any event within ten (10) Business Days of receipt as
additional Pledged Collateral and shall be subject to the Lien of, and the terms
and conditions of, this Agreement.
Section 6. Voting Rights; Dividends, etc.
(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 accruing to an owner of the Pledged
Collateral or any part thereof for any purpose not inconsistent with the
terms and conditions of this Agreement or any agreement giving rise to any
of the Secured Obligations; provided, however, that the Pledgor shall not
exercise, or refrain from exercising, any such right or power if any such
action would have a materially adverse effect on the value of such Pledged
Collateral; and
(ii) the Pledgor shall be entitled to retain and use any and all cash
dividends paid on the Pledged Collateral, but any and all stock and/or
liquidating dividends, other distributions in property, return of capital
or other distributions made on or in respect of Pledged Securities, whether
resulting from a subdivision, combination or reclassification of
outstanding Securities of an Issuer which are pledged hereunder or received
in exchange for Pledged Collateral or any part thereof or as a result of
any merger, consolidation, acquisition or other exchange of assets or on
the liquidation, whether voluntary or involuntary, of an Issuer, or
otherwise, shall be and become part of the Pledged Collateral pledged
hereunder and, if received by the Pledgor, shall forthwith be delivered to
the Pledgee to be held as collateral subject to the terms and conditions of
this Agreement.
The Pledgee shall execute and deliver to the Pledgor, or cause to be executed
and delivered to the Pledgor, as appropriate, all such proxies, powers of
attorney, dividend orders and other instruments as the Pledgor may reasonably
request for the purpose of
-3-
enabling the Pledgor to exercise the voting and/or consensual rights and powers
which Pledgor is entitled to exercise pursuant to clause (i) above and/or to
receive the dividends which Pledgor is authorized to retain pursuant to clause
(ii) above.
(b) Upon the occurrence and during the continuance of an Event of Default
hereunder, all rights of the Pledgor to exercise the voting and/or consensual
rights and powers which Pledgor is entitled to exercise pursuant to subsection
(a)(i) above and/or to receive the dividends and other amounts which Pledgor is
authorized to receive and retain pursuant to subsection (a)(ii) above shall
cease, and all such rights thereupon shall become immediately vested in the
Pledgee, which shall have, to the extent permitted by Applicable Law, the sole
and exclusive right and authority to exercise such voting and/or consensual
rights and powers which the Pledgor shall otherwise be entitled to exercise
pursuant to subsection (a)(i) above and/or to receive and retain the dividends
and other amounts which the Pledgor shall otherwise be authorized to retain
pursuant to subsection (a)(ii) above. Any and all money and other property paid
over to or received by the Pledgee pursuant to the provisions of this subsection
(b) shall be retained by the Pledgee as additional collateral hereunder and
shall be applied in accordance with the provisions of Section 9 hereof. If the
Pledgor shall receive any dividends or other property which it is not entitled
to receive under this Section, the Pledgor shall hold the same in trust for the
Pledgee, without commingling the same with other funds or property of or held by
the Pledgor, and shall promptly deliver the same to the Pledgee immediately upon
receipt by the Pledgor in the identical form received, together with any
necessary endorsements.
Section 7. Event of Default Defined. For purposes of this Agreement,
"Event of Default" shall mean the occurrence and continuance of one or more of
the following events:
(a) Pledgor shall fail to observe or perform any covenant or agreement
contained in Section 4(a), Section 5, or Section 6(b) hereof;
(b) Pledgor shall fail to observe or perform any covenant or agreement
contained in this Agreement (other than those covered by the immediately
preceding clause (a)) for a period of thirty days after written notice thereof
has been given to Pledgor by Pledgee; and
(c) an Event of Default under and as defined in the Credit Agreement shall
occur and be continuing.
Section 8. Remedies upon Default.
(a) In addition to any right or remedy that the Pledgee may have under the
Credit Agreement, the other Loan Documents or otherwise under Applicable Law, if
an Event of Default shall have occurred, the Pledgee may exercise any and all
the rights and remedies of a secured party under the Uniform Commercial Code as
in effect in any applicable jurisdiction (the "Code") and may otherwise sell,
assign, transfer, endorse and
-4-
deliver the whole or, from time to time, any part of the Pledged Collateral at a
public or private sale or on any securities exchange, for cash, upon credit or
for other property, for immediate or future delivery, and for such price or
prices and on such terms as the Pledgee in its discretion shall deem
appropriate. The Pledgee shall be authorized at any 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 Collateral for
their own account in compliance with the Securities Act and upon consummation of
any such sale the Pledgee shall have the right to assign, transfer, endorse and
deliver to the purchaser or purchasers thereof the Pledged Collateral so sold.
Each purchaser at any sale of Collateral shall take and hold the property sold
absolutely free from any claim or right on the part of the Pledgor, and the
Pledgor hereby waives (to the extent permitted by Applicable Law) all rights of
redemption, stay and/or appraisal which the Pledgor now has or may at any time
in the future have under any Applicable Law now existing or hereafter enacted.
The Pledgor agrees that, to the extent notice of sale shall be required by
Applicable Law, at least ten days' prior written notice to the Pledgor of the
time and place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notification, but notice given in any other
reasonable manner or at any other reasonable time shall constitute reasonable
notification. Such notice, in case of public sale, shall state the time and
place for such sale, and, in the case of sale on a securities exchange, shall
state the exchange at which such sale is to be made and the day on which the
Pledged Collateral, or portion thereof, will first be offered for sale at such
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 Pledgee may fix and
shall state in the notice or publication (if any) of such sale. At any such
sale, the Pledged Collateral, or portion thereof to be sold, may be sold in one
lot as an entirety or in separate parcels, as the Pledgee may determine in its
sole and absolute discretion. The Pledgee shall not be obligated to make any
sale of the Pledged Collateral if it shall determine not to do so regardless of
the fact that notice of sale of the Pledged 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 the sale of all
or any part of the Pledged Collateral is made on credit or for future delivery,
the Pledged 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 to the Pledgor in case any such purchaser or purchasers
shall fail to take up and pay for the Pledged Collateral so sold and, in case of
any such failure, such Pledged Collateral may be sold again upon like notice. At
any public sale made pursuant to this Agreement, each of the Pledgee and the
Lenders, to the extent permitted by Applicable Law, may bid for or purchase,
free from any right of redemption, stay and/or appraisal on the part of the
Pledgor (all said rights being also hereby waived and released to the extent
permitted by Applicable Law), any part of or all the Pledged Collateral offered
for sale and may make payment on account thereof by using any claim then due and
payable to the Pledgee or the Lenders from the Pledgor as a credit against the
purchase price, and the Pledgee and the Lenders may, upon compliance with the
terms of sale and to the extent permitted by Applicable Law, hold, retain and
dispose of such property without further accountability
-5-
to the Pledgor therefor. For purposes hereof, a written agreement to purchase
all or any part of the Pledged Collateral shall be treated as a sale thereof;
the Pledgee shall be free to carry out such sale pursuant to such agreement and
the Pledgor shall not be entitled to the return of any Pledged Collateral
subject thereto, notwithstanding the fact that after the Pledgee shall have
entered into such an agreement all Events of Default may have been remedied or
the Secured Obligations may have been paid in full as herein provided.
(b) In addition to exercising the power of sale herein conferred upon it,
the Pledgee shall also have the option to proceed by suit or suits at law or in
equity to foreclose this Agreement and sell the Pledged Collateral or any
portion thereof pursuant to judgment or decree of a court or courts having
competent jurisdiction.
(c) Notwithstanding anything contained herein to the contrary, in
exercising its rights and remedies hereunder, the Pledgee will only dispose of
so much of the Pledged Collateral as the Pledgee reasonably determines will be
necessary to pay in full the Secured Obligations.
(d) The rights and remedies of the Pledgee under this Agreement are
cumulative and not exclusive of any rights or remedies which it would otherwise
have.
Section 9. Application of Proceeds of Sale and Cash. The proceeds of any
sale of the whole or any part of the Pledged Collateral, together with any other
moneys held by the Pledgee under the provisions of this Agreement, shall be
applied by the Pledgee in the following order:
(a) First: to the payment of all costs and expenses incurred in connection
with such sale or other realization, including reasonable attorneys' fees
incurred if the Pledgee endeavored to collect the Secured Obligations by or
through an attorney at law;
(b) Second: to the payment of the interest due upon any of the Secured
Obligations, in any order which the Lenders may elect;
(c) Third: to the payment of the principal due upon any of the Secured
Obligations in any order which the Lenders may elect; and
(d) Fourth: the balance (if any) of such proceeds shall be paid to the
Pledgor or to whomsoever may be legally entitled thereto.
The Pledgor shall remain liable and will pay, on demand, any deficiency
remaining in respect of the Secured Obligations.
Section 10. Pledgee Appointed Attorney-in-Fact. The Pledgor hereby
constitutes and appoints the Pledgee the attorney-in-fact of the Pledgor with
full power of substitution either in the Pledgee's name or in the name of the
Pledgor to do any of the following: (a) to perform any obligation of the Pledgor
hereunder in the Pledgor's name or otherwise;
-6-
(b) to ask for, demand, xxx for, collect, receive, receipt and give acquittance
for any and all moneys due or to become due under and by virtue of any Pledged
Collateral; (c) to prepare, execute, file, record or deliver notices,
assignments, financing statements, continuation statements or like papers to
perfect, preserve or release the Pledgee's security interest in the Pledged
Collateral or any of the documents, instruments, certificates and agreements
described in Section 11(b) hereof; (d) to prepare, execute, file, record or
deliver applications for registration or like papers to perfect, preserve or
release the Pledgee's security interest in the Pledged Collateral or any of the
documents, instruments, certificates and agreements described in Section 11(b)
hereof; (e) to verify facts concerning the Pledged Collateral in its own name or
a fictitious name; (f) to endorse checks, drafts, orders and other instruments
for the payment of money payable to the Pledgor, representing any interest or
dividend or other distribution payable in respect of the Pledged Collateral or
any part thereof or on account thereof and to give full discharge for the same;
(g) to exercise all rights, powers and remedies which the Pledgor would have,
but for this Agreement, under the Pledged Collateral; and (h) to carry out the
provisions of this Agreement and to take any action and execute any instrument
which the Pledgee may deem necessary or advisable to accomplish the purposes
hereof, and to do all acts and things and execute all documents in the name of
the Pledgor or otherwise, deemed by the Pledgee as necessary, proper and
convenient in connection with the preservation, perfection or enforcement of its
rights hereunder; provided, however, the Pledgee may exercise the power of
attorney granted herein to take the actions specified in the immediately
preceding clauses (a), (b), (d), (e), (f), (g) and (h) only upon the occurrence
and during the continuance of an Event of Default. Nothing herein contained
shall be construed as requiring or obligating the Pledgee to make any commitment
or to make any inquiry as to the nature or sufficiency of any payment received
by it, or to present or file any claim or notice, or to take any action with
respect to the Pledged Collateral or any part thereof or the moneys due or to
become due in respect thereof or any property covered thereby, and no action
taken by the Pledgee or omitted to be taken with respect to the Pledged
Collateral or any part thereof shall give rise to any defense, counterclaim or
offset in favor of the Pledgor or to any claim or action against the Pledgee.
The power of attorney granted herein is irrevocable and coupled with an
interest.
Section 11. Further Assurances. The Pledgor shall, at its sole cost and
expense, take all action that may be necessary or desirable in the Pledgee's
reasonable opinion, or that the Pledgee may reasonably request, so as at all
times to maintain the validity, perfection, enforceability and priority of the
Pledgee's security interest in the Pledged Collateral, or to enable the Pledgee
to exercise or enforce its rights hereunder, including without limitation (a)
delivering to the Pledgee, endorsed or accompanied by such instruments of
assignment as the Pledgee may specify, any and all chattel paper, instruments,
letters of credit and all other advices of guaranty and documents evidencing or
forming a part of the Pledged Collateral and (b) executing and delivering
financing statements, pledges, designations, notices and assignments, in each
case in form and substance satisfactory to the Pledgee, relating to the
creation, validity, perfection, priority or continuation of the security
interest granted hereunder. The Pledgor agrees to take,
-7-
and authorizes the Pledgee to take on the Pledgor's behalf, any or all of the
following actions with respect to any Pledged Collateral as the Pledgee shall
deem reasonably necessary to perfect the security interest and pledge created
hereby or to enable the Pledgee to enforce its rights and remedies hereunder:
(i) to register in the name of the Pledgee any Pledged Collateral in
certificated or uncertificated form; (ii) to endorse in the name of the Pledgee
any Pledged Collateral issued in certificated form; and (iii) by book entry or
otherwise, identify as belonging to the Pledgee a quantity of securities that
constitutes all or part of the Pledged Collateral registered in the name of the
Pledgee. Notwithstanding the foregoing the Pledgor agrees that Pledged
Collateral which is not in certificated form or is otherwise in book-entry form
shall be held for the account of the Pledgee. The Pledgor hereby authorizes the
Pledgee to execute and file in all necessary and appropriate jurisdictions (as
determined by the Pledgee) one or more financing or continuation statements (or
any other document or instrument referred to in the immediately preceding clause
(b)) in the name of the Pledgor and to sign the Pledgor's name thereto. The
Pledgor authorizes the Pledgee to file any such financing statement, document or
instrument without the signature of the Pledgor to the extent permitted by
Applicable Law. Any property comprising part of the Pledged Collateral required
to be delivered to the Pledgee pursuant to this Pledge Agreement shall be
accompanied by proper instruments of assignment duly executed by the Pledgor and
by such other instruments or documents as the Pledgee or its counsel may
reasonably request. In the event any Pledged Collateral in certificated form
becomes eligible for book-entry treatment, the Pledgor will use its best efforts
to effectuate such book-entry treatment with respect to such Pledged Collateral.
Section 12. Securities Act. In view of the position of the Pledgor in
relation to the Pledged Collateral, or because of other current or future
circumstances, a question may arise under the Securities Act or any similar
Applicable Law hereafter enacted analogous in purpose or effect (such Act and
any such similar Applicable Law as from time to time in effect being called the
"Federal Securities Laws") with respect to any disposition of the Pledged
Collateral permitted hereunder. The Pledgor understands that compliance with
the Federal Securities Laws might very strictly limit the course of conduct of
the Pledgee if the Pledgee were to attempt to dispose of all or any part of the
Pledged Collateral in accordance with the terms hereof, and might also limit the
extent to which or the manner in which any subsequent transferee of any Pledged
Collateral could dispose of the same. Similarly, there may be other legal
restrictions or limitations affecting the Pledgee in any attempt to dispose of
all or part of the Pledged Collateral in accordance with the terms hereof under
applicable Blue Sky or other state securities laws or similar Applicable Law
analogous in purpose or effect. The Pledgor recognizes that in light of the
foregoing restrictions and limitations the Pledgee may, with respect to any sale
of the Pledged Collateral, limit the purchasers to those who will agree, among
other things, to acquire such Pledged Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that in light of the foregoing restrictions and
limitations, the Pledgee, in its sole and absolute discretion, may, in
accordance with Applicable Law, (a) proceed to make such a sale whether or not a
registration statement for the purpose of registering such Pledged Collateral or
part
-8-
thereof shall have been filed under the Federal Securities Laws and (b)
approach and negotiate with a single potential purchaser to effect such sale.
The Pledgor acknowledges and agrees that any such sale might result in prices
and other terms less favorable to the seller than if such sale were a public
sale without such restrictions. In the event of any such sale, the Pledgee
shall incur no responsibility or liability for selling all or any part of the
Pledged Collateral in accordance with the terms hereof at a price that the
Pledgee, in its sole and absolute discretion, may in good xxxxx xxxx reasonable
under the circumstances, notwithstanding the possibility that a substantially
higher price might have been realized if the sale were deferred until after
registration as aforesaid or if more than a single purchaser were approached.
The provisions of this Section will apply notwithstanding the existence of
public or private market upon which the quotations or sales prices may exceed
substantially the price at which the Pledgee sells.
Section 13. Registration. The Pledgor agrees that, upon the occurrence
and during the continuance of an Event of Default, if for any reason the Pledgee
desires to sell any of the Pledged Collateral at a public sale, it will, at any
time and from time to time, upon the written request of the Pledgee, use its
best efforts to take, or to cause the Issuer of such Pledged Collateral to take,
such action, if any, and prepare, distribute and/or file such documents, if any,
as are required or advisable in the reasonable opinion of counsel for the
Pledgee to permit the public sale of such Pledged Collateral. The Pledgor
further agrees to indemnify, defend and hold harmless the Pledgee and the
Lenders, any underwriter and their respective officers, directors, affiliates
and controlling persons from and against all loss, liability, expenses, costs,
fees and disbursements of counsel incurred (including, without limitation,
reasonable costs of legal counsel incurred by the Pledgee), and claims
(including the costs of investigation) that they may incur insofar as such loss,
liability, expense or claim arises out of or is based upon any alleged untrue
statement of a material fact contained in any prospectus (or any amendment or
supplement thereto) or in any notification or offering circular, or arises out
of or is based upon any alleged omission to state a material fact required to be
stated therein or necessary to make the statements in any thereof not
misleading, except insofar as the same may have been caused by any untrue
statement or omission based upon information furnished in writing to the Pledgor
or the Issuer of such Pledged Collateral by the Pledgee, any Lender or the
underwriter expressly for use therein. The Pledgor further agrees to use its
best efforts to qualify, file or register, or cause the Issuer of such Pledged
Collateral to qualify, file or register, any of the Pledged Collateral under the
Blue Sky or other securities laws of such states as may be reasonably requested
by the Pledgee and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. The Pledgor will bear all costs and
expenses of carrying out its obligations under this Section. The Pledgor
acknowledges that there is no adequate remedy at law for its failure to comply
with the provisions of this Section and that such failure would not be adequate
compensable in damages, and therefore agrees that its agreements contained in
this Section may be specifically enforced.
Section 14. Indemnification. The Pledgor agrees to indemnify and hold the
Pledgee, each Lender and any corporation controlling, controlled by, or under
common control with, the Pledgee or any Lender and any officer, attorney,
director, shareholder,
-9-
agent or employee of the Pledgee, any Lender or any such corporation (each an
"Indemnified Person"), harmless from and against any claim, loss, damage,
action, cause of action, liability, cost and expense or suit of any kind or
nature whatsoever (collectively, "Losses"), brought against or incurred by an
Indemnified Person, in any manner arising out of or, directly or indirectly,
related to or connected with this Agreement, including without limitation, the
exercise by the Pledgee of any of its rights and remedies under this Agreement
or any other action taken by the Pledgee pursuant to the terms of this
Agreement; provided, however, the Pledgor shall not be liable to an Indemnified
Person for any Losses to the extent that such Losses result from the gross
negligence or willful misconduct of such Indemnified Person. The Pledgor's
obligations under this section shall survive the termination of this Agreement
and the payment in full of the Secured Obligations.
Section 15. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall remain in full
force and effect until indefeasible payment in full of the Secured Obligations.
The Pledgor and the Pledgee hereby agree that the security interest created by
this Agreement in the Pledged Collateral shall not terminate and shall continue
and remain in full force and effect notwithstanding the transfer to the Pledgor
or any person designated by it of all or any portion of the Pledged Collateral.
Section 16. NO NOVATION. THE PARTIES HERETO HAVE ENTERED INTO THIS
AGREEMENT SOLELY TO AMEND AND RESTATE THE TERMS OF THE EXISTING PLEDGE
AGREEMENT. THE PARTIES DO NOT INTEND THIS AGREEMENT, NOR THE TRANSACTIONS
CONTEMPLATED HEREBY, TO BE, AND THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OR WAIVER OF ANY OF THE
OBLIGATIONS OWING BY THE PLEDGOR UNDER OR IN CONNECTION WITH THE EXISTING PLEDGE
AGREEMENT. FURTHER, NONE OF THE PLEDGOR, THE PLEDGEE NOR ANY LENDER INTENDS IN
ANY WAY TO AFFECT THE PERFECTION OR PRIORITY OF THE PLEDGEE'S LIEN IN THE
PLEDGED COLLATERAL CREATED PURSUANT TO THE EXISTING PLEDGE AGREEMENT.
Section 17. No Waiver. Neither the failure on the part of the Pledgee to
exercise, nor the delay on its part in exercising any right, power or remedy
hereunder, nor any course of dealing between the Pledgee and the Pledgor shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power, or remedy hereunder preclude any other or the further
exercise thereof or the exercise of any other right, power or remedy.
-10-
Section 18. Notices. All notices and communications required or permitted
hereunder shall be given in accordance with the applicable provisions of the
Credit Agreement.
SECTION 19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 20. Amendments. No amendment or waiver of any provision of this
Agreement nor consent to any departure by the Pledgor herefrom shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
Section 21. Binding Agreement; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Pledgor shall not be permitted to assign
this Agreement or any interest herein or in the Pledged Collateral, or any part
thereof, or any cash or property held by the Pledgee as collateral under this
Agreement.
Section 22. Termination. Upon indefeasible payment in full of all of the
Secured Obligations, this Agreement shall terminate. Upon termination of this
Agreement in accordance with its terms the Pledgee agrees to take such actions
as the Pledgor may reasonably request, and at the sole cost and expense of the
Pledgor, (a) to return the Pledged Collateral to the Pledgor, and (b) to
evidence the termination of this Agreement, including, without limitation, the
filing of any releases or any termination statements under the Uniform
Commercial Code.
Section 23. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under Applicable Law, but if any provision of this Agreement shall be prohibited
by or invalid under Applicable Law, such provisions shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Agreement.
Section 24. Headings. Section headings used herein are for convenience
only and are not to affect the construction of or be taken into consideration in
interpreting this Agreement.
Section 25. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute but one agreement.
Section 26. Definitions. Terms not otherwise defined herein are used
herein with the respective meanings given them in the Credit Agreement.
-11-
IN WITNESS WHEREOF, the Pledgor has executed and delivered this Amended and
Restated Pledge Agreement as of this the date first written above.
SC REALTY INCORPORATED
By: /s/ ???
------------------------------
Title: Secretary
-----------------------
Agreed to, accepted and acknowledged
as of the date first written above.
XXXXX FARGO REALTY ADVISORS
FUNDING, INCORPORATED, as Agent
By:
------------------------------
Title:
-------------------------
By:/s/ Xxxxxxxxx X. Xxxxxx
------------------------------
Title: Assistant Secretary
------------------------
-12-
