EXHIBIT 10.32
PLEDGE AND SECURITY AGREEMENT
This Pledge and Security Agreement (the "Agreement") is dated as of
December 15, 1997, between CHAMPION FINANCIAL CORPORATION, a Utah corporation
(the "Debtor"), with its chief executive office and mailing address at 0000 Xxxx
Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and XXXXXX TRUST AND SAVINGS
BANK, an Illinois banking corporation (the "Secured Party"), with its mailing
address at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
PRELIMINARY STATEMENT
A. The Debtor has requested that the Secured Party extend credit or
otherwise make financial accommodations available to or for the account of the
Debtor.
B. As a condition to extending credit or otherwise making financial
accommodations available to or for the account of the Debtor, the Secured Party
requires, among other things, that the Debtor grant the Secured Party a security
interest in the Debtor's personal property described herein subject to the terms
and conditions hereof.
NOW, THEREFORE, in consideration of the benefits accruing to the
Debtor, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Grant of Security Interest. The Debtor hereby grants to the Secured
Party a lien on and security interest in, and acknowledges and agrees that the
Secured Party has and shall continue to have a continuing lien on and security
interest in, any and all right, title and interest of the Debtor, whether now
owned or existing or hereafter created, acquired or arising, in and to the
following: (a) all shares of the capital stock of each subsidiary of the Debtor,
whether now existing or hereafter formed or acquired (those shares delivered to
and deposited with the Secured Party on the date hereof being listed and
described on Schedule A attached hereto), and all substitutions and additions to
such shares (herein, the "Pledged Securities"), (b) all dividends, distributions
and sums distributable or payable from, upon or in respect of the Pledged
Securities, (c) all other rights and privileges incident to the Pledged
Securities, and (d) all proceeds and products of the foregoing (all of the
foregoing being hereinafter referred to collectively as the "Collateral").
2. Obligations Hereby Secured. The lien and security interest granted
and provided for herein is made and given to secure, and shall secure, the
payment and performance of (a) any and all indebtedness, obligations and
liabilities of whatsoever kind and nature of the Debtor to
the Secured Party (whether arising before or after the filing of a petition in
bankruptcy), whether direct or indirect, absolute or contingent, due or to
become due, and whether now existing or hereafter arising and howsoever held,
evidenced or acquired, and whether several, joint or joint and several and (b)
any and all expenses and charges, legal or otherwise, suffered or incurred by
the Secured Party in collecting or enforcing any of such indebtedness,
obligations and liabilities or in realizing on or protecting or preserving any
security therefor, including, without limitation, the lien and security interest
granted hereby (all of the foregoing being hereinafter referred to as the
"Obligations").
3. Covenants, Agreements, Representations and Warranties. The Debtor
hereby covenants and agrees with, and represents and warrants to, the Secured
Party that:
(a) The Debtor is a corporation duly organized and validly existing in
good standing under the laws of the State of Utah, is the sole and lawful legal,
record and beneficial owner of the Collateral, and has full right, power and
authority to enter into this Agreement and to perform each and all of the
matters and things herein provided for. The execution and delivery of this
Agreement, and the observance and performance of the matters and things herein
set forth, will not (i) contravene or constitute a default under any provision
of law, or any judgment, injunction, order or decree binding upon the Debtor, or
any provision of the Debtor's articles of incorporation or by-laws, or any
covenant, indenture or agreement of or affecting the Debtor or any of its
property, or (ii) result in the creation or imposition of any lien or
encumbrance on any property of the Debtor except for the lien and security
interest in the Collateral granted to the Secured Party pursuant to this
Agreement. The Debtor's chief executive office is located at 0000 Xxxx Xxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and the Debtor shall not move its
chief executive office without first providing the Secured Party 30 days prior
written notice of the Debtor's intent to do so, provided that the Debtor shall
at all times maintain its chief executive office in the United States of America
and, with respect to any such new location, the Debtor shall have taken all
action requested by the Secured Party to maintain the lien and security interest
of the Secured Party in the Collateral at all times fully perfected and in full
force and effect. The Debtor's Federal tax identification number is 00-0000000.
(b) The certificates for all shares of the Pledged Securities shall be
delivered by the Debtor to the Secured Party duly endorsed in blank for transfer
or accompanied by an appropriate assignment or assignments or an appropriate
undated stock power or powers, in every case sufficient to transfer title
thereto. The Secured Party may at any time after the occurrence of an Event of
Default cause to be transferred into its name or into the name of its nominee or
nominees any and all of the shares of the Pledged Securities. The Secured Party
shall at all times have the right to exchange the certificates representing the
Pledged Securities for certificates of smaller or larger denominations.
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(c) The Pledged Securities have been validly issued and are fully paid
and non-assessable. There are no outstanding commitments or other obligations of
the issuer of any of the Pledged Securities to issue, and no options, warrants
or other rights of any person or entity to acquire, any share of any class or
series of capital stock of such issuer. The Pledged Securities listed and
described on Schedule A attached hereto constitute all of the issued and
outstanding capital stock of every class and series of the issuers thereof
(other than directors' qualifying shares as required by law). The Debtor further
agrees that in the event that any such issuer of the Pledged Securities shall
issue any additional capital stock of any class or series, the Debtor shall
forthwith pledge and deposit hereunder, or cause to be pledged and deposited
hereunder, all such additional shares of such capital stock (other than
directors' qualifying shares as required by law).
(d) The Collateral and every part thereof is and will be free and clear
of all security interests, liens (including, without limitation, mechanics',
laborers' and statutory liens), attachments, levies and encumbrances of every
kind, nature and description and whether voluntary or involuntary, except for
the security interest of the Secured Party therein and as otherwise provided on
Schedule B attached hereto. The Debtor shall warrant and defend the Collateral
against any claims and demands of all persons or entities at any time claiming
the same or any interest in the Collateral adverse to the Secured Party. The
Debtor has the right to vote the Collateral and there are no restrictions upon
the voting rights associated with, or the transfer of, any of the Collateral,
except as provided by federal and state laws applicable to the sale of
securities generally or as otherwise disclosed to the Secured Party in writing.
(e) None of the Collateral constitutes margin stock (within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System).
(f) The Debtor shall not, without the Secured Party's prior written
consent, sell, assign, or otherwise dispose of the Collateral or any interest
therein.
(g) The Debtor shall promptly pay when due all taxes, assessments and
governmental charges and levies upon or against the Debtor or the Collateral, in
each case before the same become delinquent and before penalties accrue thereon,
unless and to the extent that the same are being contested in good faith by
appropriate proceedings which prevent foreclosure on or other realization upon
any of the Collateral and the Debtor shall have established adequate reserves
therefor.
(h) The Debtor agrees to execute and deliver to the Secured Party such
further agreements, assignments, instruments and documents and to do all such
other things as the Secured Party may deem necessary or appropriate to assure
the Secured Party its lien and security interest hereunder, including such
assignments, stock powers, financing statements,
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instruments and documents as the Secured Party may from time to time require in
order to comply with the Uniform Commercial Code as enacted in the State of
Illinois and any successor statute(s) thereto (the "Code"). The Debtor hereby
agrees that a carbon, photographic or other reproduction of this Agreement or
any such financing statement is sufficient for filing as a financing statement
by the Secured Party without notice thereof to the Debtor wherever the Secured
Party in its sole discretion desires to file the same. In the event for any
reason the law of any jurisdiction other than Illinois becomes or is applicable
to the Collateral or any part thereof, or to any of the Obligations, the Debtor
agrees to execute and deliver all such agreements, assignments, instruments and
documents and to do all such other things as the Secured Party in its sole
discretion deems necessary or appropriate to preserve, protect and enforce the
lien and security interest of the Secured Party under the law of such other
jurisdiction. The Debtor agrees to xxxx its books and records to reflect the
lien and security interest of the Secured Party in the Collateral.
(i) If, as and when the Debtor delivers any securities for pledge
hereunder in addition to those listed on Schedule A hereto, the Debtor shall
furnish to the Secured Party a duly completed and executed amendment to such
Schedule in substantially the form (with appropriate insertions) of Schedule C
hereto reflecting the securities pledged hereunder after giving effect to such
addition.
(j) On failure of the Debtor to perform any of the covenants and
agreements herein contained, the Secured Party may, at its option, perform the
same and in so doing may expend such sums as the Secured Party may deem
advisable in the performance thereof, including, without limitation, the payment
of any taxes, liens and encumbrances, expenditures made in defending against any
adverse claims, and all other expenditures which the Secured Party may be
compelled to make by operation of law or which the Secured Party may make by
agreement or otherwise for the protection of the security hereof. All such sums
and amounts so expended shall be repayable by the Debtor immediately without
notice or demand, shall constitute additional Obligations secured hereunder and
shall bear interest from the date said amounts are expended at the rate per
annum (computed on the basis of a 360-day year for the actual number of days
elapsed) determined by adding 2% to the rate per annum from time to time
announced by the Secured Party as its prime commercial rate, with any change in
such rate per annum as so determined by reason of a change in such prime
commercial rate to be effective on the date of such change in said prime
commercial rate (such rate per annum as so determined being hereinafter referred
to as the "Default Rate"). No such performance of any covenant or agreement by
the Secured Party on behalf of the Debtor, and no such advancement or
expenditure therefor, shall relieve the Debtor of any default under the terms of
this Agreement or in any way obligate the Secured Party to take any further or
future action with respect thereto. The Secured Party, in making any payment
hereby authorized, may do so according to any xxxx, statement or estimate
procured from the appropriate public office or holder of the claim to be
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discharged without inquiry into the accuracy of such xxxx, statement or estimate
or into the validity of any tax assessment, sale, forfeiture, tax lien or title
or claim. The Secured Party, in performing any act hereunder, shall be the sole
judge of whether the Debtor is required to perform same under the terms of this
Agreement. The Secured Party is hereby authorized to charge any depository or
other account of the Debtor maintained with the Secured Party for the amount of
such sums and amounts so expended.
4. Special Provisions re: Voting Rights and Dividends. Unless and until
an Event of Default has occurred and thereafter until notified by the Secured
Party pursuant to Section 6(b) hereof:
(a) The Debtor shall be entitled to exercise all voting and/or
consensual powers pertaining to the Collateral or any part thereof for
all purposes not inconsistent with the terms of this Agreement or any
other document evidencing or otherwise relating to any of the
Obligations.
(b) The Debtor shall be entitled to receive and retain all
dividends which are paid in cash out of earned surplus of the issuer of
the relevant Pledged Securities; but all dividends paid upon or in
respect of the Collateral and all stock or other property distributed
in respect thereof representing stock or liquidating dividends or a
distribution or return of capital upon or in respect of the Collateral
or any part thereof or resulting from a split-up or reclassification of
the Collateral or any part thereof or received in addition to, in
substitution of or in exchange for the Collateral or any part thereof
as a result of a merger, consolidation or otherwise, shall be paid,
delivered or transferred, as appropriate, directly to the Secured Party
immediately upon the receipt thereof by the Debtor and may, in the case
of cash, be applied by the Secured Party to the satisfaction of
Obligations (in whatever order the Secured Party elects) whether or not
the same may then be due or otherwise adequately secured and shall, in
the case of all other property, together with any cash received by the
Secured Party and not applied as aforesaid, be held by the Secured
Party pursuant hereto as additional Collateral pledged under and
subject to the terms of this Agreement.
(c) In order to permit the Debtor to exercise such voting
and/or consensual powers which it is entitled to exercise under
subsection (a) above and to receive such distributions which the Debtor
is entitled to receive and retain under subsection (b) above, the
Secured Party will, if necessary, upon the written request of the
Debtor, from time to time execute and deliver to the Debtor appropriate
proxies and dividend orders.
(d) In order to permit the Secured Party to receive all cash
and other property to which it may be entitled under subsection (b)
above, the Debtor shall, if necessary,
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upon the written request of the Secured Party, from time to time
execute and deliver to the Secured Party appropriate dividend orders.
5. Power of Attorney. The Debtor hereby appoints the Secured Party, and
each of its nominees, officers, agents, attorneys, and any other person whom the
Secured Party may designate, as the Debtor's attorney-in-fact, with full power
and authority to ask, demand, collect, receive, receipt for, xxx for, compound
and give acquittance for any and all sums or properties which may be or become
due, payable or distributable in respect of the Collateral or any part thereof,
with full power to settle, adjust or compromise any claim thereunder or therefor
as fully as the Debtor could itself do, to endorse or sign the Debtor's name on
any assignments, stock powers, or other instruments of transfer and on any
checks, notes, acceptances, money orders, drafts and any other forms of payment
or security that may come into the Secured Party's possession and on all
documents of satisfaction, discharge or receipt required or requested in
connection therewith, and, in its discretion, to file any claim or take any
other action or proceeding, either in its own name or in the name of the Debtor,
or otherwise, which the Secured Party may deem necessary or appropriate to
collect or otherwise realize upon all or any part of the Collateral, or effect a
transfer thereof, or which may be necessary or appropriate to protect and
preserve the right, title and interest of the Secured Party in and to such
Collateral and the security intended to be afforded hereby. The Debtor hereby
ratifies and approves all acts of any such attorney and agrees that neither the
Secured Party nor any such attorney will be liable for any acts or omissions nor
for any error of judgment or mistake of fact or law other than such person's
gross negligence or willful misconduct. The Secured Party may file one or more
financing statements disclosing its security interest in all or any part of the
Collateral without the Debtor's signature appearing thereon, and the Debtor also
hereby grants the Secured Party a power of attorney to execute any such
financing statements, and any amendments or supplements thereto, on behalf of
the Debtor without notice thereof to the Debtor. The foregoing powers of
attorney, being coupled with an interest, are irrevocable until the Obligations
have been fully paid and satisfied and all agreements of the Secured Party to
extend credit to or for the account of the Debtor have expired or otherwise have
been terminated.
6. Defaults and Remedies.
(a) The occurrence of any one or more of the following events shall
constitute an "Event of Default" hereunder:
(i) default in the payment when due (whether by demand, lapse
of time, acceleration or otherwise) of the Obligations or any part
thereof; or
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(ii) default in the observance or performance of any covenant
set forth in Section 4 hereof or of any provision hereof dealing with
the use or remittance of proceeds of Collateral; or
(iii) default in the observance or performance of any other
provision hereof which is not remedied within 10 days after the earlier
of (a) the date on which such default shall first become known to any
officer of the Debtor or (b) written notice thereof is given to the
Debtor by the Secured Party; or
(iv) any representation or warranty made by the Debtor herein,
or in any statement or certificate furnished by it pursuant hereto, or
in connection with any loan or extension of credit made to or on behalf
of or at the request of the Debtor by the Secured Party, shall be false
in any material respect as of the date of the issuance or making
thereof; or
(v) default in the observance or performance of any terms or
provisions of any mortgage, security agreement or any other instrument
or document securing any Obligations or setting forth terms and
conditions applicable thereto or otherwise relating thereto, or this
Agreement or any such other mortgage, security agreement, instrument or
document shall for any reason not be or shall cease to be in full force
and effect or any of the foregoing is declared to be null and void; or
(vi) default shall occur under any evidence of indebtedness
issued, assumed or guaranteed by the Debtor or under any indenture,
agreement or other instrument under which the same may be issued, and
such default shall continue for a period of time sufficient to permit
the acceleration of the maturity of any such indebtedness (whether or
not such maturity is in fact accelerated), or any such indebtedness
shall not be paid when due (whether by lapse of time, acceleration or
otherwise); or
(vii) the Debtor makes any payment on account of the principal
of or interest on any indebtedness which is prohibited under the terms
of any instrument subordinating such indebtedness to indebtedness owed
to the Secured Party; or
(viii) any judgment or judgments, writ or writs, or warrant or
warrants of attachment, or any similar process or processes in an
aggregate amount in excess of $100,000 shall be entered or filed
against the Debtor or against any of its property or assets and which
remains unvacated, unbonded, unstayed or unsatisfied for a period of 30
days; or
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(ix) the Debtor shall (a) have entered involuntarily against
it an order for relief under the United States Bankruptcy Code, as
amended, (b) not pay, or admit in writing its inability to pay, its
debts generally as they become due, (c) make an assignment for the
benefit of creditors, (d) apply for, seek, consent to, or acquiesce in,
the appointment of a receiver, custodian, trustee, examiner, liquidator
or similar official for it or any substantial part of its property, (e)
institute any proceeding seeking to have entered against it an order
for relief under the United States Bankruptcy Code, as amended, to
adjudicate it insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (f) take any action in furtherance of any matter described
in parts (a) through (e) above, or (g) fail to contest in good faith
any appointment or proceeding described in Section 6(a)(x) hereof; or
(x) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Debtor or any substantial
part of any of its property, or a proceeding described in Section
6(a)(ix)(e) shall be instituted against the Debtor, and such
appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 60 days; or
(xi) any guarantor of any Obligations shall die or shall
terminate, breach, repudiate or disavow its guarantee or any part
thereof, or any event specified in Sections 6(a)(viii), 6(a)(ix) or
6(a)(x) hereof shall occur with regard to said guarantor.
(b) Upon the occurrence of any Event of Default, all rights of the
Debtor to receive and retain the distributions which it is entitled to receive
and retain pursuant to Section 4(b) hereof shall, at the option of the Secured
Party, cease and thereupon become vested in the Secured Party which, in addition
to all other rights provided herein or by law, shall then be entitled solely and
exclusively to receive and retain the distributions which the Debtor would
otherwise have been authorized to retain pursuant to Section 4(b) hereof and all
rights of the Debtor to exercise the voting and/or consensual powers which it is
entitled to exercise pursuant to Section 4(a) hereof shall, at the option of the
Secured Party, cease and thereupon become vested in the Secured Party which, in
addition to all other rights provided herein or by law, shall then be entitled
solely and exclusively to exercise all voting and other consensual powers
pertaining to the Collateral and to exercise any and all rights of conversion,
exchange or subscription and any other rights, privileges or options pertaining
thereto as if the Secured Party were the absolute owner thereof including,
without limitation, the right to exchange, at its discretion, the Collateral or
any part thereof upon the merger, consolidation, reorganization,
recapitalization or other readjustment of the respective issuer thereof or upon
the exercise by or
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on behalf of any such issuer or the Secured Party of any right, privilege or
option pertaining to the Collateral or any part thereof and, in connection
therewith, to deposit and deliver the Collateral or any part thereof with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as the Secured Party may determine.
(c) Upon the occurrence of any Event of Default, the Secured Party
shall have, in addition to all other rights provided herein or by law, the
rights and remedies of a secured party under the Code (regardless of whether the
Code is the law of the jurisdiction where the rights or remedies are asserted
and regardless of whether the Code applies to the affected Collateral), and
further the Secured Party may, without demand and without advertisement, notice,
hearing or process of law, all of which the Debtor hereby waives, at any time or
times, sell and deliver any or all Collateral held by or for it at public or
private sale, at any securities exchange or broker's board or elsewhere, for
cash, upon credit or otherwise, at such prices and upon such terms as the
Secured Party deems advisable, in its sole discretion. In the exercise of any
such remedies, the Secured Party may sell all the Collateral as a unit even
though the sales price thereof may be in excess of the amount remaining unpaid
on the Obligations. The Secured Party is authorized at any sale or other
disposition of the Collateral, if it deems it advisable so to do, to restrict
the prospective bidders or purchasers to persons who will represent and agree
that they are purchasing for their own account for investment, and not with a
view to the distribution or resale of any of the Collateral. In addition to all
other sums due the Secured Party hereunder, the Debtor shall pay the Secured
Party all costs and expenses incurred by the Secured Party, including attorneys'
fees and court costs, in obtaining, liquidating or enforcing payment of
Collateral or the Obligations or in the prosecution or defense of any action or
proceeding by or against the Secured Party or the Debtor concerning any matter
arising out of or connected with this Agreement or the Collateral or the
Obligations, including, without limitation, any of the foregoing arising in,
arising under or related to a case under the United States Bankruptcy Code (or
any successor statute). Any requirement of reasonable notice shall be met if
such notice is personally served on or mailed, postage prepaid, to the Debtor in
accordance with Section 9(b) hereof at least 10 days before the time of sale or
other event giving rise to the requirement of such notice; provided however, no
notification need be given to the Debtor if the Debtor has signed, after an
Event of Default has occurred, a statement renouncing any right to notification
of sale or other intended disposition. The Secured Party shall not be obligated
to make any sale or other disposition of the Collateral regardless of notice
having been given. The Secured Party may be the purchaser at any such sale or
other disposition of the Collateral or any part thereof. The Debtor hereby
waives all of its rights of redemption from any sale or other disposition of the
Collateral or any part thereof. Subject to the provisions of applicable law, the
Secured Party may postpone or cause the postponement of the sale of all or any
portion of the Collateral by announcement at the time and place of such sale,
and such sale may, without further notice, be made at the time and place to
which the sale was postponed or the Secured Party may further postpone such sale
by announcement made at such time and place.
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(d) The powers conferred upon the Secured Party hereunder are solely to
protects its interest in the Collateral and shall not impose on it any duty to
exercise such powers. The Secured Party shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equivalent to
that which the Secured Party accords its own property, consisting of similar
type securities, it being understood, however, that the Secured Party shall have
no responsibility for (a) ascertaining or taking any action with respect to
calls, conversions, exchanges, maturities, tenders or other matters relating to
any Collateral, whether or not the Secured Party has or is deemed to have
knowledge of such matters, (b) taking any necessary steps to preserve rights
against any parties with respect to any Collateral, or (c) initiating any action
to protect the Collateral against the possibility of a decline in market value.
This Agreement constitutes an assignment of rights only and not an assignment of
any duties or obligations of the Debtor in any way related to the Collateral,
and the Secured Party shall have no duty or obligation to discharge any such
duty or obligation.
(e) Failure by the Secured Party to exercise any right, remedy or
option under this Agreement or any other agreement between the Debtor and the
Secured Party or provided by law, or delay by the Secured Party in exercising
the same, shall not operate as a waiver; and no waiver by the Secured Party
shall be effective unless it is in writing and then only to the extent
specifically stated. Neither the Secured Party nor any party acting as attorney
for the Secured Party shall be liable for any acts or omissions or for any error
of judgment or mistake of fact or law other than their gross negligence or
willful misconduct. The rights and remedies of the Secured Party under this
Agreement shall be cumulative and not exclusive of any other right or remedy
which the Secured Party may have. For purposes of this Agreement, an Event of
Default shall be construed as continuing after its occurrence until the same is
waived in writing by the Secured Party.
7. Application of Proceeds. The proceeds and avails of the Collateral
at any time received by the Secured Party after the occurrence of any Event of
Default hereunder shall, when received by the Secured Party in cash or its
equivalent, be applied by the Secured Party as follows:
(i) First, to the payment and satisfaction of all sums paid
and costs and expenses incurred by the Secured Party hereunder or
otherwise in connection herewith, including such monies paid or
incurred in connection with protecting, preserving or realizing upon
the Collateral or enforcing any of the terms hereof, including
attorneys' fees and court costs, together with any interest thereon
(but without preference or priority of principal over interest or of
interest over principal), to the extent the Secured Party is not
reimbursed therefor by the Debtor; and
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(ii) Second, to the payment and satisfaction of the remaining
Obligations, whether or not then due (in whatever order the Secured
Party elects), both for interest and principal.
The Debtor shall remain liable to the Secured Party for any deficiency. Any
surplus remaining after the full payment and satisfaction of the foregoing shall
be returned to the Debtor or to whomsoever the Secured Party reasonably
determines is lawfully entitled thereto.
8. Continuing Agreement. This Agreement shall be a continuing agreement
in every respect and shall remain in full force and effect until all of the
Obligations, both for principal and interest, have been fully paid and satisfied
and all agreements of the Secured Party to extend credit to or for the account
of the Debtor have expired or otherwise have been terminated. Upon such
termination of this Agreement, the Secured Party shall, upon the request and at
the expense of the Debtor, forthwith release its security interest hereunder.
9. Miscellaneous.
(a) This Agreement cannot be changed or terminated orally. All of the
rights, privileges, remedies and options given to the Secured Party hereunder
shall inure to the benefit of its successors and assigns, and all the terms,
conditions, covenants, agreements, representations and warranties of and in this
Agreement shall bind the Debtor and its legal representatives, successors and
assigns, provided that the Debtor may not assign its rights or delegate its
duties hereunder without the Secured Party's prior written consent. The Debtor
hereby releases the Secured Party from any liability for any act or omission
relating to the Collateral or this Agreement, except for the Secured Party's
gross negligence or willful misconduct.
(b) Except as otherwise specified herein, all notices hereunder shall
be in writing (including, without limitation, notice by telecopy) and shall be
given to the relevant party at its address or telecopier number set forth below,
or such other address or telecopier number as such party may hereafter specify
by notice to the other given by United States certified or registered mail, by
telecopy or by other telecommunication device capable of creating a written
record of such notice and its receipt. Notices hereunder shall be addressed:
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to the Debtor at: to the Secured Party at:
Champion Financial Corporation Xxxxxx Trust and Savings Bank
0000 Xxxx Xxx Xxxxxxxx Xxxxx X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000 000 Xxxx Xxxxxx Xxxxxx
Attention: Xx. Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
Chief Financial Officer Attention: Xx. Xxxxxxxxxxx Xxxxxxx,
Telephone: (000) 000-0000 Tax-Exempt Institutions Division
Telecopy: (000) 000-0000 Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section and a confirmation of such telecopy has been received
by the sender, (ii) if given by mail, five (5) days after such communication is
deposited in the mail, certified or registered with return receipt requested,
addressed as aforesaid, or (iii) if given by any other means, when delivered at
the addresses specified in this Section.
(c) In the event that any provision hereof shall be deemed to be
invalid or unenforceable by reason of the operation of any law or by reason of
the interpretation placed thereon by any court, this Agreement shall be
construed as not containing such provision, but only as to such locations where
such law or interpretation is operative, and the invalidity or unenforceability
of such provision shall not affect the validity of any remaining provisions
hereof, and any and all other provisions hereof which are otherwise lawful and
valid shall remain in full force and effect.
(d) This Agreement shall be deemed to have been made in the State of
Illinois and shall be governed by, and construed in accordance with, the laws of
the State of Illinois. All terms which are used in this Agreement which are
defined in the Code shall have the same meanings herein as said terms do in the
Code unless this Agreement shall otherwise specifically provide. The headings in
this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning of any provision hereof.
(e) This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each
constituting an original, but all together one and the same instrument. The
Debtor acknowledges that this Agreement is and shall be effective upon its
execution and delivery by the Debtor to the Secured Party, and it shall not be
necessary for the Secured Party to execute this Agreement or any other
acceptance hereof or otherwise to signify or express its acceptance hereof.
-12-
(f) The Debtor hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Northern District of Illinois and of any
Illinois state court sitting in the City of Chicago for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Debtor irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
form. THE DEBTOR AND THE SECURED PARTY EACH HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the Debtor has caused this Agreement to be duly
executed and delivered the day and year first above written.
CHAMPION FINANCIAL CORPORATION
By /s/ Xxxxxxx X Xxxxxx
-----------------------
Xxxxxxx X Xxxxxx,Executive Vice
President and
Secretary
