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PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Pledge and Security
Agreement"), dated as of October 25, 1994, is made by EQUITY HOLDINGS LIMITED,
an Illinois limited partnership (the "Pledgor"), in favor of NATIONSBANK OF
NORTH CAROLINA, N.A., a national banking association (the "Bank"). All
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Loan Agreement (as defined below).
RECITALS
WHEREAS, Pledgor, Equity-EQR, Inc., Equity-ERP, Inc. and Riverside
Partners (collectively, the "Borrowers") and the Bank entered into that certain
Loan Agreement of even date herewith (the "Loan Agreement");
WHEREAS, it is a condition precedent to the Bank entering into the
Loan Documents that the Pledgor shall have executed and delivered to the Bank,
among other things, this Pledge and Security Agreement providing for the pledge
to the Bank of, and the grant to the Bank of a security interest in,
outstanding shares of capital stock owned by the Pledgor; and
WHEREAS, Pledgor reasonably expects to benefit, directly or
indirectly, from its execution and delivery of this Pledge and Security
Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Bank to make the Loan under the Loan
Agreement, the Pledgor and the Bank hereby agree as follows:
AGREEMENT
SECTION 1. Pledge and Grant of Security Interest. As collateral
security for all of the Pledgor Obligations (as defined in Section 2 hereof),
the Pledgor hereby pledges and assigns to the Bank and grants to the Bank a
continuing security interest in the following (collectively, the "Pledged
Collateral):
(a) Pledged Shares. All of the issued and outstanding
shares of stock set forth on Schedule 1 attached hereto and all
certificates representing such shares and all options and other
rights, contractual or otherwise, with respect thereto collectively
the "Pledged Shares"); and
(b) Proceeds. All proceeds and products of the Pledged
Collateral, however and whenever acquired and in whatever form.
Without limiting the generality of the foregoing, it is hereby
specifically understood and agreed that the Pledgor may from time to
time hereafter deliver additional shares of stock
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to the Bank as collateral security for the Pledgor Obligations.
Upon delivery to the Bank, such additional shares of stock shall be
deemed to be part of the Pledged Collateral and shall be subject to
the terms of this Pledge and Security Agreement whether or not
Schedule 1 is amended to refer to such additional shares.
SECTION 2. Security for Obligations. The security interest created
hereby in the Pledged Collateral constitutes continuing collateral security for
all of the following obligations, whether now existing or hereafter incurred
(the "Pledgor Obligations"):
(a) Payment. The prompt payment by the Borrowers, as and
when due and payable, of the Obligations and all other amounts owing
from time to time by the Borrowers to the Bank;
(b) Performance By Borrower. The due performance and
observance by the Borrowers of all others obligations from time
to time existing with respect to the Loan Agreement, the Note, and
any other Loan Document; and
(c) Performance by Pledgor. The due performance and
observance by the Pledgor of its obligations under this Pledge and
Security Agreement.
SECTION 3. Delivery of the Pledged Collateral.
(a) All certificates representing the Pledged Shares
shall be delivered to the Bank simultaneously with or prior to the
execution and delivery of this Pledge and Security Agreement. All
other certificates and instruments constituting Pledged Collateral
shall be delivered to the Bank promptly upon the receipt thereof by or
on behalf of the Pledgor. Prior to delivery to the Bank, all such
certificates and instruments shall be held by or on behalf of the Bank
pursuant hereto. All such certificates shall be delivered in suitable
form for transfer by delivery or shall be accompanied by duly executed
instruments of transfer or assignment in blank, in each case with
appropriate guaranties of signature, all in form and substance
satisfactory to the Bank.
(b) Financing Statements. The Pledgor shall execute and
deliver to the Bank such UCC financing statements as reasonably
requested by the Bank.
SECTION 4. Pledgor's Representations and Warranties. The
Pledgor represents and warrants the following:
(a) Authorization of Pledged Shares. The Pledged Shares
are duly authorized and validly issued, are fully paid and
nonassessable and are not subject to the preemptive rights of others.
All other shares of stock constituting Pledged Collateral will be duly
authorized and validly issued, fully paid and nonassessable and not
subject to the preemptive rights of any person.
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(b) Title. The Pledgor has good and indefeasible title to
the Pledged Collateral and will at all times be the legal and
beneficial owner of the Pledged Collateral free and clear of any lien,
adverse claim, security interest or other charge or encumbrance except
for the security interest created by this Pledge and Security
Agreement.
(c) Exercising of Rights. The exercise by the Bank of its
rights and remedies hereunder will not contravene any law or
governmental regulation or any contractual restriction binding on or
affecting the Pledgor or any of its property.
(d) Pledgor's Authority. No authorization, approval or
action by, and no notice or filing with any governmental authority or
regulatory body or with the issuer of the Pledged Stock is required
either (i) for the pledge made by the Pledgor or for the granting of
the security interest by the Pledgor pursuant to this Pledge and
Security Agreement; or (ii) for the exercise by the Bank of its rights
and remedies hereunder (except as may be required by laws affecting
the offering and sale of securities).
(e) Valid Security Interest. This Pledge and Security
Agreement creates a valid security interest in favor of the Bank in
the Pledged Collateral. The taking possession by the Bank of the
certificates representing the Pledged Shares and all other
certificates and instruments constituting Pledged Collateral will
perfect and establish the first priority of the Bank's security
interest in the Pledged Shares and in all other Pledged Collateral
represented by such certificates and instruments securing the Pledgor
Obligations. Except as set forth in this Section 4(e), no action is
necessary to perfect or otherwise protect such security interest.
(f) Litigation. No litigation or governmental proceeding
is pending or threatened against Pledgor or any of its assets which if
adversely determined would have a material adverse effect on the
Pledged Collateral or the Pledgor's performance under this Pledge and
Security Agreement or any other Loan Document.
(g) Issuer. The Pledgor is not an "issuer" with respect
to the Pledged Stock, as such term is defined in the Securities Act
of 1933, as amended, nor is it a subsidiary of the "issuer" of the
Pledged Stock.
(h) Ownership. The Pledged Stock has been beneficially
owned by the Pledgor for more than three years, the Pledgor has
continued to "hold" the Pledged Shares (as such term is used pursuant
to Rule 144 of the Securities Act of 1933, as amended) since the date
of acquisition, and, if the Pledged Stock was acquired by purchase,
the purchase price was paid in full on the date it was acquired.
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SECTION 5. Covenants as to the Pledged Collateral. So long as
any of the Pledgor Obligations shall remain outstanding, the Pledgor
shall, unless the Bank shall otherwise consent in writing, do the
following:
(a) Notices. The Pledgor shall promptly notify the Bank
of (i) any lien, security interest, encumbrance, or claim made or
threatened against the Pledged Collateral; and (ii) the occurrence or
existence of any Event of Default, (as defined hereunder) or the
occurrence or existence of any condition or event that, with the
giving of notice of lapse of time or both, would be an Event of
Default.
(b) Books and Records. The Pledgor shall xxxx its books
and records to reflect the security interest granted to the Bank
pursuant to this Pledge and Security Agreement.
(c) Examination. Upon reasonable notice, the Pledgor
shall permit the Bank and its representatives to examine, inspect and
copy Pledgor's books and records at any reasonable time and as often
as the Bank desires.
(d) Copies of Notices. The Pledgor shall, at its expense,
promptly deliver to the Bank (i) a copy of each notice or other
communication received by it that is likely to affect in any material
respect the Bank's security interest in the Pledged Collateral or the
value of the Pledged Collateral; (ii) copy of any Form 144 filed by
the Pledgor with respect to a sale or a sales of the stock of the
issuer of the Pledged Stock owned by the Pledgor and (iii) any and all
reports and other information received by the Pledgor as owner of the
Pledged Stock, including, without limitation, any annual or quarterly
reports, whether on Form 10-Q, Form 10-K or otherwise.
(e) Defense of Title. The Pledgor shall, at its expense,
warrant and defend title to and ownership of the Pledged Collateral
and the security interest created hereby against the claims of all
persons, and the Pledgor will maintain and preserve such security
interest at all times as contemplated by this Pledge and Security
Agreement and the Loan Agreement.
(f) Further Assurances. The Pledgor shall, at its
expense, promptly execute and deliver all further instruments and
documents and take all further action that may be necessary, desirable
or that the Bank may reasonably request in order to (i) perfect and
protect this security interest created hereby; (ii) enable the Bank to
exercise and enforce its rights and remedies hereunder in respect of
the Pledged Collateral, including, if necessary, completing and
forwarding a Form 144 to the United States Securities and Exchange
Commission; and (iii) otherwise effect the purposes of the Pledge and
Security Agreement, including, without limitation
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and if requested by the Bank, delivering to the Bank irrevocable
proxies in respect of the Pledged Collateral.
(g) Sale of Pledged Collateral. The Pledgor shall not
sell, assign, exchange or otherwise dispose of any of the Pledged
Collateral or any interest therein.
(h) Encumbrances. The Pledgor shall not create or allow
to exist any lien, security interest or other encumbrance upon or with
respect to any of the Pledged Collateral except for the pledge
hereunder and the security interest created hereby.
(i) Amendments. The Pledgor shall not make or consent to
any amendment or other modification or waiver with respect to any of
the Pledged Collateral or enter into any agreement or allow to exist
any restriction with respect to any of the Pledged Collateral other
than pursuant hereto.
(j) Actions. The Pledgor shall not take or fail to take
any action that would impair in any material respect the value of or
the enforceability of the Lenders' security interest in any of the
Pledged Collateral.
(k) Compliance with Securities Laws. The Pledgor shall
file all reports and other information now or hereafter required to be
filed with the United States Securities and Exchange Commission and
any other state or federal agency in connection with its ownership of
the Pledged Collateral.
(l) Nature of Business. The Pledgor shall not engage in
any business other than the ownership of stock and the pledge of such
stock to secure debt incurred.
SECTION 6. Rights of the Bank.
(a) Power of Attorney. The Pledgor hereby irrevocably
appoints the Bank and any officer or agent thereof the Pledgor's
attorney-in-fact and proxy, with full power of substitution for and on
behalf and in the name of the Pledgor or otherwise, during the
existence of an Event of Default (as defined herein), in the Bank's
discretion, to take any action and to execute any instrument which the
Bank may deem necessary or advisable to accomplish the purpose of this
Pledge and Security Agreement, and, without limiting the generality of
the foregoing, hereby gives the Bank the power and right on behalf of
the Pledgor and in its own name to do any of the following, without
notice to or consent of, Pledgor:
(i) to demand, xxx for, collect or receive in the
name of the Bank, any money or property at any time payable
or receivable on account of, or in exchange for, any of the
Pledged Collateral and, in connection therewith, endorse
checks, notes, drafts, acceptances,
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money orders, or any other instruments for the payment of
money under the Pledged Collateral;
(ii) to pay or discharge taxes, liens, security
interests, or other encumbrances levied or placed on or
threatened against the Pledged Collateral;
(iii) to direct any parties liable for any payment
under any of the Pledged Collateral to make payment of any and
all monies due and to become due thereunder directly to the
Bank or as the Bank shall direct;
(iv) to receive payment of and receipt for any and
all monies, claims, and other amounts due and to become due at
any time in respect of or arising out of any Pledged
Collateral;
(v) to sign and endorse any drafts, assignments,
proxies, stock powers, verifications, notices and other
documents relating to the Pledged Collateral;
(vi) to commence and prosecute any suit, actions
or proceedings at law or in equity in any court of competent
jurisdiction to collect the Pledged Collateral or any part
thereof and to enforce any other right in respect of any
Pledged Collateral;
(vii) to defend any suit, action or proceeding
brought against the Pledgor with respect to any Pledged
Collateral;
(viii) to settle, compromise or adjust any suit,
action or proceeding described above and, in connection
therewith, to give such discharges or releases as the Bank may
deem appropriate; and
(ix) to exchange any of the Pledged Collateral or
other property upon any merger, consolidation, reorganization,
recapitalization or other readjustment of the issuer thereof
and in connection therewith, deposit any of the Pledged
Collateral with any committee, depository, transfer agent,
registrar or other designated agency upon such terms as the
bank may determine.
This power of attorney is a power coupled with an interest and shall
be irrevocable. The Bank shall be under no duty to exercise or
withhold the exercise of any of the rights, powers, privileges and
options expressly or implicitly granted to the Bank in this Pledge and
Security Agreement, and shall not be liable for any failure to do so
or any delay in doing so. The Bank shall not be liable for any act or
omission or for any error of judgment or any mistake of fact or law in
its individual capacity or its capacity as attorney-in-fact except
acts or omissions resulting from its gross negligence or willful
misconduct. This power of attorney is conferred on
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the Bank solely to protect, preserve and realize upon its security
interest in the Pledged Collateral.
(b) Performance by the Bank of Pledgor's Obligations. If
the Pledgor fails to perform any agreement or obligation contained
herein, the Bank itself may perform, or cause performance of, such
agreement or obligation, and the expenses of the Bank incurred in
connection therewith shall be payable by the Pledgor pursuant to
Section 9 hereof.
(c) Assignment by the Bank. The Bank may from time to
time assign the Pledgor Obligations and any portion thereof and/or the
Pledged Collateral and any portion thereof, and the assignee shall be
entitled to all of the rights and remedies of the Bank under this
Pledge and Security Agreement in relation thereto.
(d) The Bank's Duty of Care. Other than the exercise of
reasonable care to assure the safe custody of the Pledged Collateral
while being held by the Bank hereunder, the Bank shall have no duty
or liability to preserve rights pertaining thereto, it being
understood and agreed that the Pledgor shall be responsible for
preservation of all rights in the Pledged Collateral, and the Bank
shall be relieved of all responsibility for the Pledged Collateral
upon surrendering it or tendering the surrender of it to the Pledgor.
The Bank shall be deemed to have exercised reasonable care in the
custody and preservation of the Pledged Collateral in its possession
if the Pledged Collateral is accorded treatment substantially equal to
that which the Bank accords its own property, it being understood that
the Bank shall not have responsibility for (i) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relating to any Pledged Collateral, whether
or not the Bank has or is deemed to have knowledge of such matters; or
(ii) taking any necessary steps to preserve rights against any parties
with respect to any Pledged Collateral.
(e) Voting Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default (as defined
herein) shall have occurred and be continuing, the Pledgor may
exercise any and all voting and other consensual rights
pertaining to the Pledged Collateral or any part thereof for
any purpose not inconsistent with the terms of this Pledge and
Security Agreement or the Agreement;
(ii) 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 which it
would otherwise be entitled to exercise pursuant to paragraph
(i) of this Section shall cease and all such rights shall
thereupon become vested in the Bank which
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shall thereupon have the sole right to exercise such voting
and other consensual rights.
(f) Dividend Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have
occurred and be continuing, the Pledgor may receive and retain
any and all dividends or interest paid in respect of the
Pledged Collateral.
(ii) Upon the occurrence and during the continuance
of an Event of Default:
(A) all rights of the Pledgor to receive
the dividends and interest payments which it would
otherwise be authorized to receive and retain
pursuant to paragraph (i) of this Section shall
cease and all such rights shall thereupon be vested
in the Bank which shall thereupon have the sole right
to receive and hold as Pledged Collateral such
dividends and interest payments; and
(B) all dividends and interest payments
which are received by the Pledgor contrary to the
provisions of paragraph (i) of this Section shall be
received in trust for the benefit of the Bank, shall
be segregated from other property or funds of the
Pledgor, and shall be forthwith paid over to the Bank
as Pledged Collateral in the exact form received, to
be held by the Bank as Pledged Collateral and as
further collateral security for the Pledgor
Obligations.
(g) Release of Collateral. The Bank may release any of
the Pledged Collateral from this Pledge and Security Agreement
or may substitute any of the Pledged Collateral for other
Pledged Collateral (all as more fully described in the Loan
agreement) without altering, varying or diminishing in any way
the force, effect, lien, pledge or security interest of this
Pledge and Security Agreement as to the Pledged Collateral not
expressly released or substituted, and this Pledge and Security
Agreement shall continue as a first priority lien, security
interest, pledge and charge on all Pledged Collateral not
expressly released or substituted when any of the Pledgor
Obligations remain outstanding with respect to the Banks.
SECTION 7. Events of Default.
The occurrence of any of the following shall be an Event of
Default hereunder ("Event of Default"):
(a) Loan agreement. An event which under the Loan
Agreement would constitute an Event of Default;
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(b) Performance by Pledgor. Failure on the part of the
Pledgor in the timely performance or observance of any covenant,
obligation or liability contained herein and such failure shall
continue unremedied for a period of 30 days after the Pledgor becomes
aware thereof; or
(c) Representation and Warranties. Proof that any
warranty, representation or statement made or furnished to the Bank by
or on behalf of the Pledgor herein was false in any material respect
when made or furnished.
SECTION 8. Remedies Upon Default.
If any Event of Default shall have occurred and be continuing:
(a) Rights and Remedies. The Bank may exercise in
respect of the Pledged Collateral, in addition to other
rights and remedies provided for herein or otherwise available to it,
all rights and remedies of a secured party on default under the
Uniform Commercial Code then in effect in the State of North Carolina
or any other applicable law.
(b) Sale of Pledged Collateral. Without limiting the
generality of this Section and without notice, except as specified
below, the Bank may, in its sole discretion, sell or otherwise dispose
of or realize upon the Pledged Collateral, or any part thereof, in one
or more parcels, at public or private sale, at any exchange or
broker's board or elsewhere, at such price or prices and on such other
terms as the Bank may deem commercially reasonable, for cash, credit
or for future delivery or otherwise in accordance with applicable law.
The Bank may, in such event, bid for the purchase of such securities.
The Pledgor agrees that, to the extent notice of sale shall be
required by law, at least 10 days 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. The Bank shall
not be obligated to make any sale of Pledged Collateral regardless of
notice of sale having been given. The Bank may adjourn any public or
private sale from time to time by announcement at the time and place
fixed therefore, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(c) Private Sale. Pledgor recognizes that the Bank may
deem it impracticable to effect a public sale of all or any part of
the Pledged Shares or any of the securities constituting Pledged
Collateral and that the Bank may, therefore, determine to make one or
more private sales of any such securities to a restricted group of
purchasers who will be obligated to agree, among other things, to
acquire such Securities for their own account, for investment and not
with a view to the distribution or resale thereof. The Pledgor
acknowledges that any such private sale may be at prices and on terms
less favorable to the seller than the prices and
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other terms which might have been obtained at a public sale and,
notwithstanding the foregoing, agrees that such private sale shall be
deemed to have been made in a commercially reasonable manner and that
the Bank shall have no obligation to delay sale of any such securities
for the period of time necessary to permit the issuer of such
securities to register such securities for public sale under the
Securities Act. The Pledgor further acknowledges and agrees that any
offer to sell such securities which has been (i) publicly advertised
on a bona fide basis in a newspaper or other publication of general
circulation in the financial community of Chicago, Illinois (to the
extent that such offer may be advertised without prior registration
under the Securities Act), or (ii) made privately in the manner
described above shall be deemed to involve a "public sale" under the
Uniform Commercial Code as then in effect in the State of North
Carolina, notwithstanding that such sale may not constitute a "public
offering" under the Securities Act, and the Bank may, in such event,
bid for the purchase of such securities.
(d) Retention of Pledged Collateral. The Bank may, after
providing the notices required by Section 9.505 of the Uniform
Commercial Code in effect in the State of North Carolina or otherwise
complying with the requirements of applicable law of the relevant
jurisdiction, retain the Pledged Collateral in satisfaction of the
Pledgor Obligations. Unless and until the Bank shall have provided
such notices, however, the Bank shall not be deemed to have retained
any Pledged Collateral in satisfaction of any Pledgor Obligations for
any reason.
(e) Application of Proceeds. All cash proceeds received
by the Bank in respect to any sale, collection from, or other
realization upon, all or any part of the Pledged Collateral shall be
applied as follows:
(i) First, to repayment of the reasonable costs
and expenses, including reasonable attorneys fees and legal
fees, incurred by the Bank in connection with (A) the custody,
preservation, use or operation of, or the sale of, collection
from, or the other realization upon any Pledged Collateral,
(B) the exercise or enforcement of any of the rights of the
Bank hereunder, and (C) the failure of the Pledgor to perform
or observe any of the provisions hereof;
(ii) Second, at the option of the Bank, to the
payment or other satisfaction of any liens and other
encumbrances upon any of the Pledged Collateral;
(iii) Third, to the reimbursement of the Bank for
the amount of any obligations of the Pledgor paid or
discharged by the Bank pursuant to the provisions of this
Pledge and security Agreement or the Agreement;
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(iv) Fourth, to the satisfaction of the Pledgor
Obligations; and
(v) Fifth, the surplus proceeds, if any, to the
Pledgor or to whomsoever shall be lawfully entitled to receive
the same or as a court of competent jurisdiction shall direct.
(g) Deficiency. In the event that the proceeds of any
sale, collection or realization are insufficient to pay all amounts to
which the Bank is legally entitled, the Pledgor shall be liable for
the deficiency, together with interest thereon at the highest rate
specified in the Loan Agreement for interest on overdue principal
thereof or such other rate as shall be fixed by applicable law,
together with the costs of collection and the reasonable fees of any
attorneys employed by the Bank to collect such deficiency.
SECTION 9. Indemnity and Expenses.
(a) Indemnity. The Pledgor agrees to indemnify the Bank
from and against any and all claims, losses and liabilities growing
out of or resulting from this Pledge and Security Agreement, including
without limitation, enforcement of this Pledge and Security Agreement,
except claims, losses and liabilities resulting from the Bank's gross
negligence or willful misconduct, as determined by a court of
appropriate jurisdiction in a final judgment not subject to appeal or
review, or resulting from a breach by the Bank of regulations or other
restrictions governing the Bank.
(b) Payment. The Pledgor will, upon demand, pay to the
Bank the amount of any and all costs and expenses, including the
reasonable fees and disbursements of the Bank's counsel, and of any
experts and agents, which the Bank may incur in connection with (i)
the administration of this Pledge and Security Agreement; (ii) the
custody, use or operation of, or the sale of, collection from, or
other realization upon any Pledged Collateral; (iii) the exercise or
enforcement of any of the rights of the Bank hereunder; or (iv) the
failure by the Pledgor to perform or observe any of the provisions
hereof, except expenses resulting from the Bank's gross negligence or
willful misconduct, as determined by a court of appropriate
jurisdiction in a final judgment not subject to appeal or review.
SECTION 10. Notices.
All notices and other communications provided for hereunder shall be
deemed effective if in writing and delivered in conformance with Section 7.01
of the Loan Agreement.
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SECTION 11. Miscellaneous.
(a) Amendments; Continuation of Security Interests. No
amendment of any provision of this Pledge and Security Agreement shall
be effective unless it is in writing and signed by the Pledgor and the
Bank, and no waiver of any provision of this Pledge and Security
Agreement, and no consent to any departure by the Pledgor therefrom,
shall be effective unless it is in writing and signed by the Bank, and
then such waiver or consent will be effective only in the instance and
for the specific purpose for which given.
(b) No Waivers; Cumulative Remedies. No failure on the
part of the Bank to exercise, and no delay in exercising any right
hereunder or under the Loan Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise and any such right
preclude any other or further exercise thereof or the exercise of any
other right. The rights and remedies of the Bank and the Lenders
provided herein and in the Loan Agreement are accumulative and are in
addition to, and not exclusive of, any rights or remedies provided by
law.
(c) Severability. Any provision of this Pledge and
Security Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or invalidity without invalidating the
remaining portions hereof or thereof or effecting the validity or
enforceability of such provision in any other jurisdiction.
(d) Agreement in Full Force; Successors and Assigns. This
Pledge and Security Agreement shall create a continuing security
interest in the Pledged Collateral and shall (i) remain in full force
and effect until payment in full or release of the Pledgor
Obligations; and (ii) be binding on the Pledgor and permitted assigns
and shall inure, together with all rights and remedies of the Bank
hereunder to the benefit of the Bank and its successors, transferees
and assigns. Without limiting the generality of the foregoing, the
Bank may assign or otherwise transfer this Pledge and Security
Agreement to any other person, and such other person shall thereupon
become vested with all of the benefits and respect thereof granted to
the Bank herein or otherwise. None of the rights or obligations of the
Pledgor hereunder may be assigned or otherwise transferred without
prior written consent of the Bank.
(e) Satisfaction of Obligations. Upon the Satisfaction in
full of the Pledgor Obligations, this Pledge and Security Agreement
(and the security interest created hereby) shall terminate and all
rights to the Pledged Collateral shall revert to the Pledgor. The Bank
shall, upon the Pledgor's request and at the Pledgor's expense (i)
return to the Pledgor such of the Pledged Collateral as shall not have
been sold or otherwise disposed of or applied pursuant to the terms
hereof;
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and (ii) execute and deliver to the Pledgor such documents as the
Pledgor shall reasonably request to evidence such determination.
(f) Headings. The headings, captions and agreements used
in this Pledge and Security Agreement are for convenience only and
shall not affect the interpretation of this Pledge and Security
Agreement.
(g) Obligations Absolute. The obligations of Pledgor
under this Pledge and Security Agreement shall be absolute and
unconditional and shall not be released, discharged, reduced or in any
way impaired by any circumstance whatsoever, including without
limitation, any amendment, modification, extension or renewal of this
Pledge and Security Agreement, the Pledgor Obligations, any document
or instrument evidencing, securing or otherwise relating to the
Pledgor Obligations, any release, subordination or impairment of the
Pledged Collateral, any waiver, consent, extension, indulgence,
compromise, settlement or other action or inaction in respect of this
Pledge and Security Agreement, the Pledgor Obligations, the Pledged
Collateral or any document or instrument evidencing, securing, or
otherwise relating to the Pledgor Obligations, or any exercise or
failure to exercise any right, remedy, power or privilege in respect
to the Pledgor Obligations.
(h) Governing Law; Venue.
(a) THIS PLEDGE AND SECURITY AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NORTH CAROLINA. Any legal action or
proceeding with respect to this Pledge and Security Agreement
may be brought in the courts of the State of North Carolina in
Mecklenburg County, or of the United States for the Western
District of North Carolina, and, by execution and delivery of
this Pledge and Security Agreement, Pledgor hereby irrevocably
accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of such courts. Pledgor
further irrevocably consents to the service of process out of
any the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address for notices
pursuant to Section 7.01 of the Loan Agreement, such service
to become effective thirty (30) days after such mailing.
Nothing herein shall affect the right the Bank to serve
process in any other manner permitted by law or to commence
legal proceedings or to otherwise proceed against the Pledgor
in any other jurisdiction.
(b) Pledgor hereby irrevocably waives any
objection which it may now or hereafter have to the laying
of venue
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of any of the aforesaid actions or proceedings arising out of
or in connection with this Pledge and Security Agreement brought in
the courts referred to in subsection (a) hereof and hereby irrevocable
waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought
in an inconvenient form.
(i) Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
PLEDGE AND SECURITY AGREEMENT HEREBY IRREVOCABLE WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS PLEDGE AND SECURITY AGREEMENT, ANY OF THE OTHER
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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The Pledgor has caused this Pledge and Security Agreement to be duly
executed and delivered, as of the date first above written.
EQUITY HOLDINGS LIMITED, an Illinois
limited partnership
By: Xxxxxx Xxxx Revocable Trust
established under Trust
Agreement dated
January 17, 1990
general Partner
By: /s/ Xxxxxx Xxxx
--------------------
Xxxxxx Xxxx, Trustee
By: Xxxxxx X. and Xxx Xxxxx
Trust established under
Trust Agreement establish-
ing the Xxxxxx Xxxxx
Revocable Trust dated
December 19, 1989,
general partner
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxxx, Trustee
Accepted as of October 25, 1994
NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
------------------------------
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SCHEDULE 1
TO PLEDGE AND SECURITY AGREEMENT
Name of Stock Number of Shares Certificate Number
Great American Management 100,000 SO 0270
and Investment, Inc., 100,000 SO 0271
a Delaware Corporation 100,000 SO 0272
100,000 SO 0273
100,000 SO 0274
100,000 SO 0275
100,000 SO 0276
100,000 SO 0277
