PLEDGE AGREEMENT
Exhibit
10.6
THIS
PLEDGE AGREEMENT dated as of February 20, 2007 (this “Agreement”), is executed
by and between XXXXXXXXX’X HOLDINGS, INC., a Texas corporation (the "Pledgor")
in favor of AMEGY BANK NATIONAL ASSOCIATION, a national banking association
(the
"Secured Party").
R E C I T A L S:
A. Secured
Party and Borrowers have entered into that certain Loan Agreement of even date
herewith (such Loan Agreement, as the same may be amended or modified from
time
to time, being hereinafter referred to as the "Loan Agreement"). All capitalized
terms used, but not defined herein, shall have the meanings given to them in
the
Loan Agreement.
B. Pledgor
has agreed to guaranty the obligations of Borrowers pursuant to that certain
Unlimited Guaranty Agreement dated of even date herewith (the
“Guaranty”).
C. Secured
Party has conditioned its obligations under the Loan Agreement upon the
execution and delivery of this Agreement by Pledgor.
NOW
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
ARTICLE
I
Security
Interest and Pledge
Section
1.01. Security
Interest and Pledge.
Pledgor
hereby pledges and grants to Secured Party a first priority security interest
in
the following property (such property being hereinafter sometimes called the
"Collateral"):
(a) all
of
Pledgor's shares of common capital stock of Xxxxxxxxx’x Pharmacy, Inc., a Texas
corporation (“Pharmacy”), now owned or hereafter acquired, including, without
limitation, 9,622.1807 shares of common capital stock of Pharmacy evidenced
by
certificate number 15; and
(b) all
products and proceeds of the foregoing capital stock, including, without
limitation, all revenues, distributions, dividends, stock dividends, securities,
and other property, rights, and interests that Pledgor is at any time entitled
to receive on account of the same.
Section
1.02. Obligations.
The
Collateral shall secure the following obligations, indebtedness, and liabilities
(all such obligations, indebtedness, and liabilities being hereinafter sometimes
called the "Obligations"):
(a) the
obligations and indebtedness of Borrowers to Secured Party evidenced by that
certain Promissory Note (Revolving) dated of even date herewith, executed by
Borrowers and payable to the order of Secured Party in the original principal
amount of Two Million and No/100 Dollars ($2,000,000.00) and that certain
Promissory Note (Term) dated of even date herewith, executed by Borrowers and
payable to the order of Secured Party in the original principal amount of Two
Million Two Hundred Thousand and No/100 Dollars ($2,200,000.00);
(b) the
obligations and indebtedness of Borrowers to Secured Party under the Loan
Agreement;
(c) all
future advances by Secured Party to Borrowers;
(d) the
obligations and indebtedness of Pledgor to Secured Party under the
Guaranty;
(e) all
costs
and expenses incurred by Secured Party to preserve and maintain the Collateral,
collect the obligations herein described, and enforce this
Agreement;
(f) all
other
obligations, indebtedness, and liabilities of Pledgor and Borrowers to Secured
Party, now existing or hereafter arising, regardless of whether such
obligations, indebtedness, and liabilities are similar, dissimilar, related,
unrelated, direct, indirect, fixed, contingent, primary, secondary, joint,
several, or joint and several; and
(g) all
extensions, renewals, and modifications of any of the foregoing.
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ARTICLE
II
Representations
and Warranties
Pledgor
represents
and warrants to Secured Party that:
Section
2.01. Title.
Pledgor
owns, and with respect to Collateral acquired after the date hereof, Pledgor
will own, legally and beneficially, the Collateral free and clear of any lien,
security interest, pledge, claim, or other encumbrance or any right or option
on
the part of any third person to purchase or otherwise acquire the Collateral
or
any part thereof, except for the security interest granted hereunder. The
Collateral is not subject to any restriction on transfer or assignment except
for compliance with applicable federal and state securities laws and regulations
promulgated thereunder. Pledgor has the unrestricted right to pledge the
Collateral as contemplated hereby. All of the Collateral has been duly and
validly issued and is fully paid and nonassessable.
Section
2.02. Organization
and Authority.
Pledgor
is a corporation duly organized, validly existing, and in good standing under
the laws of its state of incorporation. Pledgor has the corporate power and
authority to execute, deliver, and perform this Agreement, and the execution,
delivery, and performance of this Agreement by Pledgor have been authorized
by
all necessary corporate action on the part of Pledgor and do not and will not
violate any law, rule, or regulation or the articles of incorporation,
certificate of formation, or bylaws of Pledgor and do not and will not conflict
with, result in a breach of, or constitute a default under the provisions of
any
indenture, mortgage, deed of trust, security agreement, or other instrument
or
agreement or any judgment, decree, order, law, statute, or other governmental
rule or regulation applicable to Pledgor or any of its property.
Section
2.03. Principal
Place of Business.
The
principal place of business and chief executive office of Pledgor, and the
office where Pledgor keeps its books and records, is located at the address
of
Pledgor shown at the beginning of this Agreement.
Section
2.04. Litigation.
There
is no litigation, investigation, or governmental proceeding pending or
threatened against Pledgor or any of its properties which if adversely
determined would have a material adverse effect on the Collateral or the
financial condition, operations, or business of Pledgor.
Section
2.05. Percentage
of Stock.
The
Collateral constitutes one hundred percent (100%) of the issued and outstanding
shares of common capital stock of Pharmacy.
Section
2.06. First
Priority Perfected Security Interest.
This
Agreement creates in favor of Secured Party a first priority perfected security
interest in the Collateral.
ARTICLE
III
Affirmative
and Negative Covenants
Pledgor
covenants and agrees with Secured Party that until the Obligations are satisfied
and performed in full:
Section
3.01. Delivery.
Prior
to or concurrently with the execution and delivery of this Agreement, Pledgor
shall deliver to Secured Party all certificate(s) identified in Section 1.01(a)
hereof, accompanied by undated stock powers duly executed in blank.
Section
3.02. Encumbrances.
Pledgor
shall not create, permit, or suffer to exist, and shall defend the Collateral
against, any lien, security interest, or other encumbrance on the Collateral
except the pledge and security interest of Secured Party hereunder, and shall
defend Pledgor's rights in the Collateral and Secured Party's security interest
in the Collateral against the claims of all persons and entities.
Section
3.03. Sale
of Collateral.
Pledgor
shall not sell, assign, or otherwise dispose of the Collateral or any part
thereof without the prior written consent of Secured Party.
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Section
3.04. Distributions.
If
Pledgor shall become entitled to receive or shall receive any stock certificate
(including, without limitation, any certificate representing a stock dividend
or
a distribution in connection with any reclassification, increase, or reduction
of capital or issued in connection with any reorganization), option or rights,
whether as an addition to, in substitution of, or in exchange for any Collateral
or otherwise, Pledgor agrees to accept the same as Secured Party's agent and
to
hold the same in trust for Secured Party, and to deliver the same forthwith
to
Secured Party in the exact form received, with the appropriate endorsement
of
Pledgor when necessary and/or appropriate undated stock powers duly executed
in
blank, to be held by Secured Party as additional Collateral for the Obligations,
subject to the terms hereof. Any sums paid upon or in respect of the Collateral
upon the liquidation or dissolution of the issuer thereof shall be paid over
to
Secured Party to be held by it as additional Collateral for the Obligations
subject to the terms hereof; and in case any distribution of capital shall
be
made on or in respect of the Collateral or any property shall be distributed
upon or with respect to the Collateral pursuant to any recapitalization or
reclassification of the capital of the issuer thereof or pursuant to any
reorganization of the issuer thereof, the property so distributed shall be
delivered to the Secured Party to be held by it, as additional Collateral for
the Obligations, subject to the terms hereof. All sums of money and property
so
paid or distributed in respect of the Collateral that are received by Pledgor
shall, until paid or delivered to Secured Party, be held by Pledgor in trust
as
additional security for the Obligations.
Section
3.05. Further
Assurances.
At any
time and from time to time, upon the reasonable request of Secured Party, and
at
the sole expense of Pledgor, Pledgor shall promptly execute and deliver all
such
further instruments and documents and take such further action as Secured Party
may deem necessary or desirable to preserve and perfect its security interest
in
the Collateral and carry out the provisions and purposes of this Agreement,
including, without limitation, the execution and filing of such financing
statements as Secured Party may require. A carbon, photographic, or other
reproduction of this Agreement or of any financing statement covering the
Collateral or any part thereof shall be sufficient as a financing statement
and
may be filed as a financing statement. In the event any Collateral is ever
received by Pledgor, Pledgor shall promptly transfer and deliver to Secured
Party such Collateral so received by Pledgor (together with any necessary
endorsements in blank or undated stock powers duly executed in blank), which
Collateral shall thereafter be held by Secured Party pursuant to the terms
of
this Agreement.
Section
3.06. Inspection
Rights.
Pledgor
shall permit Secured Party and its representatives to examine, inspect, and
copy
Pledgor's books and records at any reasonable time and as often as Secured
Party
may desire. Unless an Event of Default has occurred and is continuing, Secured
Party shall give Pledgor two (2) business days notice of any such inspection
and
no more than two (2) such inspections shall be made in any calendar
year.
Section
3.07. Taxes.
Pledgor
agrees to pay or discharge prior to delinquency all taxes, assessments, levies,
and other governmental charges imposed on it or its property, except Pledgor
shall not be required to pay or discharge any tax, assessment, levy, or other
governmental charge if (i) the amount or validity thereof is being contested
by
Pledgor in good faith by appropriate proceedings diligently pursued, (ii) such
proceedings do not involve any risk of sale, forfeiture, or loss of the
Collateral or any interest therein, and (iii) adequate reserves therefor have
been established in conformity with generally accepted accounting principles.
Section
3.08. Obligations.
Pledgor
shall duly and punctually pay and perform the Obligations.
Section
3.09. Notification.
Pledgor
shall promptly notify Secured Party of (i) any lien, security interest,
encumbrance, or claim made or threatened against the Collateral, (ii) any
material change in the Collateral, including, without limitation, any material
decrease in the value of the Collateral, and (iii) the occurrence or existence
of any Event of Default (hereinafter defined) or the occurrence or existence
of
any condition or event that, with the giving of notice or lapse of time or
both,
would be an Event of Default.
Section
3.10. Books
and Records; Information.
Pledgor
shall keep accurate and complete books and records of the Collateral and
Pledgor's business and financial condition in accordance with generally accepted
accounting principles consistently applied. Pledgor shall from time to time
deliver to Secured Party such information regarding the Collateral and Pledgor
as Secured Party may reasonably request. Pledgor shall xxxx its books and
records to reflect the security interest of Secured Party under this
Agreement.
Section
3.11. Compliance
with Agreements.
Pledgor
shall comply in all material respects with all mortgages, deeds of trust,
instruments, and other agreements binding on it or affecting its properties
or
business.
Section
3.12. Compliance
with Laws.
Pledgor
shall comply with all applicable laws, rules, regulations, and orders of any
court or governmental authority.
Section
3.13. Additional
Securities.
Pledgor
shall not consent to or approve the issuance of any additional shares of any
class of capital stock of the issuer of the Collateral, or any securities
convertible into, or exchangeable for, any such shares or any warrants, options,
rights, or other commitments entitling any person or entity to purchase or
otherwise acquire any such shares.
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ARTICLE
IV
Rights
of Secured Party and Pledgor
Section
4.01. Power
of Attorney.
Pledgor
hereby irrevocably constitutes and appoints Secured Party and any officer or
agent thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead and in the name of Pledgor or in its own name, from time to time in
Secured Party's discretion, to take any and all action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement and, without limiting the generality of the
foregoing, hereby gives Secured Party the power and right on behalf of Pledgor
and in its own name to do any of the following, without notice to or the consent
of Pledgor:
(i) to
demand, xxx for, collect, or receive in the name of Pledgor or in its own name,
any money or property at any time payable or receivable on account of or in
exchange for any of the Collateral and, in connection therewith, endorse checks,
notes, drafts, acceptances, money orders, or any other instruments for the
payment of money under the Collateral;
(ii) to
pay or
discharge taxes, liens, security interests, or other encumbrances levied or
placed on or threatened against the Collateral;
(iii) (A)
to
direct account debtors and any other parties liable for any payment under any
of
the Collateral to make payment of any and all monies due and to become due
thereunder directly to Secured Party or as Secured Party shall direct; (B)
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
Collateral; (C) to sign and endorse any drafts, assignments, proxies, stock
powers, verifications, notices, and other documents relating to the Collateral;
(D) to commence and prosecute any suit, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect the Collateral or
any
part thereof and to enforce any other right in respect of any Collateral; (E)
to
defend any suit, action, or proceeding brought against Pledgor with respect
to
any Collateral; (F) to settle, compromise, or adjust any suit, action, or
proceeding described above and, in connection therewith, to give such discharges
or releases as Secured Party may deem appropriate; (G) to exchange any of the
Collateral for other property upon any merger, consolidation, reorganization,
recapitalization, or other readjustment of the issuer thereof and, in connection
therewith, deposit any of the Collateral with any committee, depositary,
transfer agent, registrar, or other designated agency upon such terms as Secured
Party may determine; (H) to add or release any guarantor, endorser, surety,
or
other party to any of the Collateral or the Obligations; (I) to renew, extend,
or otherwise change the terms and conditions of any of the Collateral or
Obligations; (J) to insure any of the Collateral; (K) to sell, transfer, pledge,
make any agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though Secured Party were the absolute owner thereof
for all purposes, and to do, at Secured Party's option and Pledgor's expense,
at
any time, or from time to time, all acts and things which Secured Party deems
necessary to protect, preserve, or realize upon the Collateral and Secured
Party's security interest therein.
This
power of attorney is a power coupled with an interest and shall be irrevocable.
Secured Party 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 Secured Party in this Agreement, and shall not be liable for any failure
to
do so or any delay in doing so. Secured Party 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 in its capacity as attorney-in-fact except acts or
omissions resulting from its willful misconduct. This power of attorney is
conferred on Secured Party solely to protect, preserve, and realize upon its
security interest in the Collateral.
Section
4.02. Voting
Rights.
So long
as no Event of Default shall have occurred and be continuing, Pledgor shall
be
entitled to exercise any and all voting rights relating or pertaining to the
Collateral or any part thereof.
Section
4.03. Dividends
and Restricted Payments.
Pledgor
will not declare or pay any dividends or make any other payment or distribution
(in cash, property, or obligations) on account of any Collateral, or redeem,
purchase, retire, or otherwise acquire any of the Collateral, or set apart
any
money for a sinking or other analogous fund for any dividend or other
distribution on the Collateral or for any redemption, purchase, retirement,
or
other acquisition of any of the Collateral, or grant or issue any Collateral
or
any warrant, right, or option pertaining to the Collateral, or issue any
security convertible into Collateral, or permit any of its subsidiaries to
purchase any Collateral.
Section
4.04. Performance
by Secured Party.
If
Pledgor fails to perform or comply with any of its agreements contained herein,
Secured Party itself may, at its sole discretion, cause or attempt to cause
performance or compliance with such agreement and the expenses of Secured Party,
together with interest thereon at the maximum nonusurious per annum rate
permitted by applicable law, shall be payable by Pledgor to Secured Party on
demand and shall constitute Obligations secured by this Agreement.
Notwithstanding the foregoing, it is expressly agreed that Secured Party shall
not have any liability or responsibility for the performance of any obligation
of Pledgor under this Agreement.
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Section
4.05. Setoff;
Property Held by Secured Party.
Secured
Party shall have the right to set off and apply against the Obligations, at
any
time and without notice to Pledgor during the continuance of an Event of
Default, any and all deposits (other than special deposits such as payroll
and
tax deposits) or other sums at any time credited by or owing from Secured Party
to Pledgor whether or not the Obligations are then due. As additional security
for the Obligations, Pledgor hereby grants Secured Party a security interest
in
all money, instruments, and other property of Pledgor now or hereafter held
by
Secured Party, including, without limitation, property held in safekeeping.
In
addition to Secured Party's right of setoff and as further security for the
Obligations, Pledgor hereby grants Secured Party a security interest in all
deposits (other than special deposits such as payroll and tax deposits) and
other accounts of Pledgor now or hereafter maintained with Secured Party and
all
other sums at any time credited by or owing from Secured Party to Pledgor.
The
rights and remedies of Secured Party hereunder are in addition to other rights
and remedies (including, without limitation, other rights of setoff) which
Secured Party may have.
Section
4.06.
Secured
Party's Duty of Care.
Other
than the exercise of reasonable care in the physical custody of the Collateral
while held by Secured Party hereunder, Secured Party shall have no
responsibility for or obligation or duty with respect to all or any part of
the
Collateral or any matter or proceeding arising out of or relating thereto,
including, without limitation, any obligation or duty to collect any sums due
in
respect thereof or to protect or preserve any rights against prior parties
or
any other rights pertaining thereto, it being understood and agreed that Pledgor
shall be responsible for preservation of all rights in the Collateral. Without
limiting the generality of the foregoing, Secured Party shall be conclusively
deemed to have exercised reasonable care in the custody of the Collateral if
Secured Party takes such action, for purposes of preserving rights in the
Collateral, as Pledgor may reasonably request in writing, but no failure or
omission or delay by Secured Party in complying with any such request by
Pledgor, and no refusal by Secured Party to comply with any such request by
Pledgor, shall be deemed to be a failure to exercise reasonable
care.
Section
4.07. Assignment
by Secured Party.
Secured
Party may from time to time assign the Obligations and any portion thereof
and/or the Collateral and any portion thereof in accordance with the Loan
Agreement, and the assignee shall be entitled to all of the rights and remedies
of Secured Party under this Agreement in relation thereto.
ARTICLE
V
Default
Section
5.01. Events
of Default.
Each of
the following shall be deemed an "Event of Default":
(a) The
occurrence of an “Event of Default” under the Loan Agreement.
(b) This
Agreement shall cease to be in full force and effect or shall be declared null
and void or the validity or enforceability thereof shall be contested or
challenged by Pledgor or any of its shareholders, or Pledgor shall deny that
it
has any further liability or obligation under this Agreement.
(c) The
failure of the Collateral pledged to Secured Party hereunder to constitute
one
hundred percent (100%) of the issued and outstanding common capital stock of
Pharmacy.
Section
5.02. Rights
and Remedies.
Upon
the occurrence of an Event of Default, Secured Party shall have the following
rights and remedies:
(i) In
addition to all other rights and remedies granted to Secured Party in this
Agreement and in any other instrument or agreement securing, evidencing, or
relating to the Obligations, Secured Party shall have all of the rights and
remedies of a secured party under the Uniform Commercial Code as adopted by
the
State of Texas. Without limiting the generality of the foregoing, Secured Party
may (A) without demand or notice to Pledgor, collect, receive, or take
possession of the Collateral or any part thereof, (B) sell or otherwise dispose
of the Collateral, or any part thereof, in one or more parcels at public or
private sale or sales, at Secured Party's offices or elsewhere, for cash, on
credit, or for future delivery, and/or (C) bid and become a purchaser at any
sale free of any right or equity of redemption in Pledgor, which right or equity
is hereby expressly waived and released by Pledgor. Upon the request of Secured
Party, Pledgor shall assemble the Collateral and make it available to Secured
Party at any place designated by Secured Party that is reasonably convenient
to
Pledgor and Secured Party. Pledgor agrees that Secured Party shall not be
obligated to give more than ten (10) days written notice of the time and place
of any public sale or of the time after which any private sale may take place
and that such notice shall constitute reasonable notice of such matters. Pledgor
shall be liable for all expenses of retaking, holding, preparing for sale,
or
the like, and all attorneys' fees and other expenses incurred by Secured Party
in connection with the collection of the Obligations and the enforcement of
Secured Party's rights under this Agreement, all of which expenses and fees
shall constitute additional Obligations secured by this Agreement. Secured
Party
may apply the Collateral against the Obligations in such order and manner as
Secured Party may elect in its sole discretion. Pledgor shall remain liable
for
any deficiency if the proceeds of any sale or disposition of the Collateral
are
insufficient to pay the Obligations. Pledgor waives all rights of marshalling
in
respect of the Collateral.
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(ii) Secured
Party may cause any or all of the Collateral held by it to be transferred into
the name of Secured Party or the name or names of Secured Party's nominee or
nominees.
(iii) Secured
Party shall be entitled to receive all cash dividends payable in respect of
the
Collateral.
(iv) Secured
Party shall have the right, but shall not be obligated to, exercise or cause
to
be exercised all voting rights and corporate powers in respect of the
Collateral, and Pledgor shall deliver to Secured Party, if requested by Secured
Party, irrevocable proxies with respect to the Collateral in form satisfactory
to Secured Party.
(v) Pledgor
hereby acknowledges and confirms that Secured Party may be unable to effect
a
public sale of any or all of the Collateral by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers who will be obligated to agree,
among other things, to acquire any shares of the Collateral for their own
respective accounts for investment and not with a view to distribution or resale
thereof. Pledgor further acknowledges and confirms that any such private sale
may result in prices or other terms less favorable to the seller than if such
sale were a public sale and, notwithstanding such circumstances, agrees that
any
such private sale shall be deemed to have been made in a commercially reasonable
manner, and Secured Party shall be under no obligation to take any steps in
order to permit the Collateral to be sold at a public sale. Secured Party shall
be under no obligation to delay a sale of any of the Collateral for any period
of time necessary to permit any issuer thereof to register such Collateral
for
public sale under the Securities Act of 1933, as amended, or under applicable
state securities laws.
(vi) On
any
sale of the Collateral, Secured Party is hereby authorized to comply with any
limitation or restriction with which compliance is necessary, in the view of
Secured Party's counsel, in order to avoid any violation of applicable law
or in
order to obtain any required approval of the purchaser or purchasers by any
applicable governmental authority.
ARTICLE
VI
Miscellaneous
Section
6.01. Expenses:
Indemnification.
Pledgor
agrees to pay on demand all reasonable costs and expenses incurred by Secured
Party in connection with the preparation, negotiation, and execution of this
Agreement and any and all amendments, modifications, and supplements hereto.
Pledgor agrees to pay and to hold Secured Party harmless from and against all
fees and all excise, sales, stamp, and other taxes payable in connection with
this Agreement or the transactions contemplated hereby. Pledgor hereby
indemnifies and agrees to hold harmless Lender, and its officers, directors,
employees, agents and representatives (each an "Indemnified
Person")
from
and against any and all liabilities, obligations, claims, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature (collectively, the "Claims")
which
may be imposed on, incurred by, or asserted against, any Indemnified Person
(whether or not caused by any Indemnified Person's sole, concurrent or
contributory negligence) arising in connection with this Agreement, the
Obligations or the Collateral (including without limitation, the enforcement
of
the Loan Documents and the defense of any Indemnified Person's actions and/or
inactions in connection with this Agreement), except to the limited extent
the
Claims against an Indemnified Person are proximately caused by such Indemnified
Person's gross negligence or willful misconduct. If Pledgor or any third party
ever alleges such gross negligence or willful misconduct by any Indemnified
Person, the indemnification provided for in this Section shall nonetheless
be
paid upon demand, subject to later adjustment or reimbursement, until such
time
as a court of competent jurisdiction enters a final judgment as to the extent
and effect of the alleged gross negligence or willful misconduct. The
indemnification provided for in this Section shall survive the termination
of
this Agreement and shall extend and continue to benefit each individual or
entity who is or has at any time been an Indemnified Person
hereunder.
Section
6.02. No
Waiver; Cumulative Remedies.
No
failure on the part of Secured Party to exercise and no delay in exercising,
and
no course of dealing with respect to, any right, power, or privilege under
this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power, or privilege under this Agreement preclude any
other or further exercise thereof or the exercise of any other right, power,
or
privilege. The rights and remedies provided for in this Agreement are cumulative
and not exclusive of any rights and remedies provided by law.
Section
6.03. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of Pledgor and Secured
Party and their respective heirs, successors, and assigns, except that Pledgor
may not assign any of its rights or obligations under this Agreement without
the
prior written consent of Secured Party.
Section
6.04. AMENDMENT;
ENTIRE AGREEMENT.
THIS
AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF
AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE
NO
ORAL AGREEMENTS AMONG THE PARTIES HERETO. The provisions of this Agreement
may
be amended or waived only by an instrument in writing signed by the parties
hereto.
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Section
6.05. Notices.
All
notices and other communications provided for in this Agreement shall be given
or made by telex, telegraph, telecopy, cable, or in writing and telexed,
telecopied, telegraphed, cabled, mailed by certified mail return receipt
requested, or delivered to the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof; or, as to any party
at
such other address as shall be designated by such party in a
notice
to
the other party given in accordance with this Section. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have
been
duly given when transmitted by telex or telecopy, subject to telephone
confirmation of receipt, or delivered to the telegraph or cable office, subject
to telephone confirmation of receipt, or when personally delivered or, in the
case of a mailed notice, when duly deposited in the mails, in each case given
or
addressed as aforesaid.
Section
6.06. Applicable
Law; Venue; Service of Process.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Texas and the applicable laws of the United States of America. This
Agreement has been entered into in Dallas County, Texas, and it shall be
performable for all purposes in Dallas County, Texas. Any action or proceeding
against Pledgor under or in connection with this Agreement or any other
instrument or agreement securing, evidencing, or relating to the Obligations
or
any part thereof may be brought in any state or federal court in Dallas County,
Texas. Pledgor hereby irrevocably (i) submits to the nonexclusive jurisdiction
of such courts, and (ii) waives any objection it may now or hereafter have
as to
the venue of any such action or proceeding brought in such court or that such
court is an inconvenient forum. Pledgor agrees that service of process upon
it
may be made by certified or registered mail, return receipt requested, at its
address specified or determined in accordance with the provisions of Section
6.05 of this Agreement. Nothing in this Agreement or any other instrument or
agreement securing, evidencing, or relating to the Obligations or any part
thereof shall affect the right of Secured Party to serve process in any other
manner permitted by law or shall limit the right of Secured Party to bring
any
action or proceeding against Pledgor or with respect to any of the Collateral
in
any state or federal court in any other jurisdiction. Any action or proceeding
by Pledgor against Secured Party shall be brought only in a court located in
Dallas County, Texas.
Section
6.07. Headings.
The
headings, captions, and arrangements used in this Agreement are for convenience
only and shall not affect the interpretation of this Agreement.
Section
6.08. Survival
of Representations and Warranties.
All
representations and warranties made in this Agreement or in any certificate
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and no investigation by Secured Party shall affect the
representations and warranties or the right of Secured Party to rely upon
them.
Section
6.09. 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 one and the
same
instrument.
Section
6.10. Severability.
Any
provision of this 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 of this Agreement, and any such prohibition or unenforceability
in
any jurisdiction shall not invalidate or render unenforceable such provision
in
any other jurisdiction.
Section
6.11. Construction.
Pledgor
and Secured Party acknowledge that each of them has had the benefit of legal
counsel of its own choice and has been afforded an opportunity to
review
this Agreement with its legal counsel and that this Agreement shall be construed
as if jointly drafted by Pledgor and Secured Party.
Section
6.12. Obligations
Absolute.
The
obligations of Pledgor under this 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 Agreement, the Obligations, or
any
document or instrument evidencing, securing, or otherwise relating to the
Obligations, or any release, subordination, or impairment of collateral, or
any
waiver, consent, extension, indulgence, compromise, settlement, or other action
or inaction in respect of this Agreement, the Obligations, or any document
or
instrument evidencing, securing, or otherwise relating to the Obligations,
or
any exercise or failure to exercise any right, remedy, power, or privilege
in
respect of the Obligations.
Section
6.13. Waiver
of Jury Trial.
TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PLEDGOR HEREBY IRREVOCABLY AND
EXPRESSLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT
OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE
ACTIONS OF SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT
THEREOF.
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
day and year first written above.
PLEDGOR:
XXXXXXXXX’X
HOLDINGS, INC.,
a
Texas
corporation
By: /s/
Xxxxx X. Xxxx
Xxxxx
X.
Xxxx
President
and Chief Executive Officer
Address
for Notices:
00000
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000-0000
Fax
No.:
(000) 000-0000
Telephone
No.: (000) 000-0000
|
Attention:
|
Xxxxx X. Xxxx |
Secured
Party’s Address for Notices:
0000
Xxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Fax
No.:
(000) 000-0000
Telephone
No.: (000) 000-0000
Attention:
Commercial Lending
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