EXHIBIT 10.14
SHAREHOLDERS' NON-RECOURSE PLEDGE AGREEMENT
THIS AGREEMENT is made as of this 9th day of February 1999, by and between
XXXXXX XXXX, XXXXX XXXXX, XXXXXX XXXXXXX and XXX XXXXXX ("Pledgors"),and XXXXX
XXXX, XXXXXXX X. XXXXXX, CASE HOLDINGS, INC., XXXXX XXXXXXX, XX., XXXXX
XXXXXXX, XX., XXXXXX XXXXX and XXXXXX X. XXXXXXX ("Lenders").
W I T N E S S E T H :
A.. Continental Heritage Corporation, a Delaware corporation, ("Borrower"),
has executed and delivered to Lenders a promissory note of even date in the
principal sum of One Million Dollars ($1,000,000) (the "Note"), which Note has
been issued pursuant to a Loan Agreement ("Loan Agreement") of even date by and
among the Borrower, the Lenders and the Pledgors.
B. As an inducement to Lenders to make the loan to Borrower, Pledgors have
agreed to execute this Agreement so as to provide security for the repayment of
the Note and performance by the Borrower and Pledgors of their agreements and
covenants contained in the Note and the Loan Agreement. Pledgors have agreed
to pledge all the shares of Common Stock, $.10 par value, of Borrower
beneficially owned by each hereunder, all as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing recitals, for good and
valuable consideration, and intending to be legally bound hereby, Pledgors
irrevocably and unconditionally agree as follows:
1. Definition of "Collateral". The term "Collateral" shall mean the
following:
(a) shares of the Borrower's Common Stock beneficially owned by each of the
Pledgors, as follows:
Xxxxxx Xxxx - 550,000 shares
Xxxxx Xxxxx* - 2,090,382 shares
Xxxxxx Xxxxxxx - 247,500 shares
Xxx Xxxxxx - 2,090,382 shares
*Held of record by Fat Cat, LLC
(b) Class A Warrants to be acquired by Xxxxx Xxxxx and Xxx Xxxxxx, as
follows:
Xxxxx Xxxxx 112,000 Class A Warrants
Xxx Xxxxxx 112,000 Class A Warrants
2. Pledge of Collateral. As security for the repayment of the Note by the
Borrowers and performance by each of the Borrowers and Pledgors of the
agreements, conditions, covenants, provisions or stipulations contained in the
Note and the Loan Agreement, each Pledgor hereby pledges and grants to Lenders
a first and prior security interest in the Collateral.
3. Delivery of Collateral. At the execution hereof, Pledgors shall deliver to
Lenders the certificate(s) representing the Collateral, duly endorsed for
transfer.
4. Representations, Warranties and Covenants of Pledgor. Each Pledgor
represents, warrants and covenants to Lenders that:
(a) He is the legal and
beneficial owner of the Collateral;
(b) The Collateral is owned by such Pledgors free and clear of all security
interests, restrictions, charges and other encumbrances of any nature, other
than the lien created hereby;
(c) The execution, delivery and performance of this Pledge Agreement do not
violate the provisions of or cause a default or constitute an event which, with
notice and/or lapse of time, would constitute a default, on the part of
Pledgor, under any law or any contract, agreement, other instrument or judgment
or decree to which such Pledgors is a party or by which it is bound;
(d) The Collateral is not, to the best of such Pledgor's knowledge, the
subject of any present or threatened suit, action, arbitration or
administrative or other proceeding, and Pledgors knows of no reasonable grounds
for the institution of any such proceeding;
(e) No approvals are required by any governmental or regulatory body, or other
third party in connection with the pledge of the Collateral;
(f) Pledgors shall, at their own expense, defend the Lenders' right, title and
security interest in and to the Collateral against the claims of any person,
corporation or other entity;
(g) Such Pledgors shall not:
(i) Sell, convey or otherwise dispose of any of the Collateral or any
interest therein without the prior written consent of Lenders and unless any
such purchaser or transferee shall agree in writing for the Shares so
transferred to be Collateral hereunder and to be bound by both the terms of
this Agreement; or
(ii) Create, incur or permit to exist any security interest, lien, charge or
encumbrance whatsoever with respect to any of the Collateral, other than the
lien created hereby;
(h) This Agreement constitutes the valid and binding obligation of such
Pledgors, enforceable in accordance with its terms; and
(i) In the event there is a reclassification or recapitalization of the
capital stock of the Borrower or the Borrower shall be a party to a merger or
consolidation or sell its assets, and as a result of such event different
securities or property shall be issued to the shareholders of the Borrower,
such other securities or property shall be delivered by the Pledgors to the
Lenders to be held by the Lenders as part of the Collateral hereunder.
5. Custodial Duties of Lender. Lenders' sole duty with respect to the
Collateral shall be to exercise reasonable care in the physical custody and
preservation of the Collateral. Lenders shall be relieved of all
responsibility for the Collateral, or any portion thereof, upon surrendering it
or tendering surrender of it to the Pledgors.
6. Powers of Lenders With Respect to Collateral.
(a) Lenders shall have the power, in his sole discretion, and without notice
to Pledgor, to execute all necessary endorsements, assignments or other
instruments of conveyances or transfer with respect to the Collateral to effect
Lenders' remedies under paragraph 10, but shall be under no duty or
responsibility to exercise or withhold the exercise of such right, and shall
not have any liability for any failure or delay in doing so, other than to
account for property actually received by Lender.
(b) Each Pledgor hereby irrevocably makes, constitutes and appoints Lenders or
a designee of Lenders as Pledgor's true and lawful attorney in fact to take one
or more of the actions, rights, powers, privileges, and options set forth in
sub-section 6(a).
7. Further Assurances. Upon written request by Lender, Pledgors shall execute
and endorse assignments or other documents and do such further acts and things
as Lenders may request to effect the purpose of this Agreement.
8. Event of Default. The following shall each constitute an event of default
("Event of Default") hereunder:
(a) The occurrence of a default as defined in the Note;
(b) Any failure by the Borrower or the Pledgors to observe or perform any of
the provisions of the Loan Agreement.
9. Remedies Upon Event of Default. Upon the occurrence of an Event of
Default, Lenders shall have the right to do any of the following:
(a) Lenders may exercise all the rights and remedies given to a secured party
after default by the Delaware Uniform Commercial Code provided at least thirty
(30) days written notice is given by Lenders to Pledgors of the occurrence of
an Event of Default.
(b) Lenders may immediately convert the Collateral to cash and apply such cash
to the outstanding sums due from Borrower to Lenders pursuant to the Note.
(c) Lenders may exercise the conditional irrevocable proxy granted to them
with respect to the Collateral to the extent set forth in Section 11 below.
(d) The remedies provided herein in favor of Lenders shall not be deemed
exclusive, but shall be cumulative, and shall be in addition to all other legal
and equitable remedies which Lenders may have.
10. Non-Recourse. Anything in this Agreement to the contrary notwithstanding,
(i) the Lenders shall look solely and only to the Collateral for satisfaction
of any and all remedies which they may have as against the Pledgors hereunder
on account of the Note, the Loan Agreement, the Collateral and/or at law or in
equity; and (ii) the Lenders shall not seek any deficiency or other judgment
against the Pledgors or their successors, heirs at law or assigns in the event
that the Collateral shall be insufficient to pay the costs and expenses of the
sale and unpaid balance of the Note or any other obligations arising or related
to the default in payment of the interest and/or principal of the Note or on
account of any breach of any covenant or agreement of the Pledgors under the
Loan Agreement. The foregoing provisions of this Section shall not be
construed or interpreted to limit or impair the rights of the Lenders to
procure any judgment to enforce collection of the Note or as against the
Collateral but only to preclude the enforceability of such judgment as against
any other asset or otherwise against the Pledgors.
11. Termination of Pledge and Proxy. This Agreement shall remain in full
force and effect until such time as the loan evidenced by the Note is repaid in
full, at which time the pledge of the Collateral and the Conditional
Irrevocable Proxies shall be deemed terminated and of no further force and
effect. Upon such termination, the Collateral shall be returned to the
Pledgors.
12. Agent for Lenders. The Lenders hereby appoint Xxxxxx Xxxxxxx as their
agent and representative to exercise all of their rights hereunder upon the
occurrence of an Event of Default including but not limited to the conversion
of the Collateral as provided in this Agreement and the exercise of the
Conditional Irrevocable Proxy as provided in said Conditional Irrevocable
Proxy.
13. Miscellaneous.
(a) Notices. All notices, requests, demands and other communications
relating to this Agreement, and the transactions contemplated herein shall be
in writing and shall be deemed to have been duly given or made when delivered
against receipt or mailed by certified mail, postage prepaid, return receipt
requested, at the addresses for each of the parties set forth in the Loan
Agreement. No change of address shall be effective as against Lenders unless
Pledgors shall have advised Lenders of the changed address in writing, mailed
to Lenders by certified mail, return receipt requested, postage prepaid.
(b) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and assigns.
(c) Choice of Law. This Agreement shall be governed in all respects by, and
construed and enforced in accordance with, the laws of the State of Delaware.
(d) Waiver. Neither the failure nor any delay on the part of Lenders to
exercise any right, remedy, power or privilege under this Pledge Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any other right, remedy, power or privilege preclude any other or further
exercise of any right, remedy, power or privilege, nor shall any waiver of any
right, remedy, power or privilege with respect to any occurrence be construed
as a waiver of such right, remedy, power or privilege with respect to any
subsequent occurrence.
(e) Provisions Separable. The provisions of this Agreement are independent
of and separable from each other, and no provision shall be affected or
rendered invalid or enforceable by virtue of the fact that for any reason any
other or others of them may be invalid or unenforceable in whole or in part.
(f) Entire Agreement. This Agreement may not be modified or amended other
than by an agreement in writing signed by Pledgors and Lenders.
(g) Singular. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
(h) Computation. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on
a Saturday, Sunday or holiday, then the final day shall be deemed to be the
next day which is not a Saturday, Sunday or holiday.
(i) Headings. The Paragraph headings in this Agreement are for convenience
of reference only; they form no part of this Agreement and shall not affect its
interpretation.
(j) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument. It shall not be necessary that
any counterpart be signed by all of the parties thereto.
IN WITNESS WHEREOF, Pledgors and Lenders have caused this Pledge Agreement to
be executed on the date first above written.
Lenders:
XXXXX XXXX XXXXXX XXXX
XXXXXXX X. XXXXXX XXXXX XXXXX
XXXXX XXXXXXX, XX. XXXXXX X. XXXXXXX
XXXXX XXXXXXX, XX. XXX XXXXXX
FAT CAT, LLC
XXXXXX XXXXX
By:
Xxxxx Xxxxx
XXXXXX X. XXXXXXX
CASE HOLDINGS, INC.
By:
