Exhibit 10.62
LOAN AND STOCK PLEDGE AGREEMENT
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THIS LOAN AND STOCK PLEDGE AGREEMENT (the "LOAN AGREEMENT" or
"AGREEMENT") is made and executed as of October 15, 1997, by and among XXXXXXXX
X. GRILL ("PLEDGOR") and UNITED PANAM FINANCIAL CORP., a Delaware corporation
("LENDER") in connection with a loan or loans of up to $300,000.00 to be made by
Lender to Pledgor ("LOAN") pursuant to a Promissory Note or Notes (each a
"NOTE") of Borrower of even date herewith, the proceeds of which have been used
by Pledgor to purchase 200 shares of the common stock of Lender (the "SHARES")
acquired by exercise of a Stock Option (the "OPTION") pursuant to a Stock Option
Agreement between Lender and Pledgor originally dated as of October 18, 1994.
The Option was granted under and subject to the terms of Lender's 1994 Stock
Option Plan.
1. Purchase of Shares. Pledgor hereby exercises the Option and
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agrees, in connection therewith, to (i) the pledge of the Shares pursuant to
this Agreement as security for the Loan; (ii) the terms and restrictions of the
May 16, 1994 Stockholders Agreement governing ownership and transfer of the
Shares; (iii) the acceptance of a certificate for the Shares subject to the
legend conditions required by the May 16, 1994 Stockholders Agreement and
applicable securities laws; and (iv) repay the Loan in full thirty days after
termination of Pledgor's employment by Lender or its affiliates as provided in
the 1994 Stock Option Plan of Lender. Pledgor represents he is acquiring Shares
for his own account and not with a view toward the resale or other distribution
thereof, and agrees that the Shares are "restricted securities" for purposes of
the Securities Act of 1933 and Rule 144 thereunder. Lender hereby agrees that
all installments of the Option shall be immediately vested and exercisable
notwithstanding any contrary provision in the Stock Option Agreement between
Lender and Pledgor.
2. Obligations; Security Interest. This Loan Agreement and the
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security interest created hereby are given for the purpose of securing the
payment and performance of any and all of Pledgor's presently existing or
hereafter arising obligations and liabilities owing to Lender ("Obligations"),
including, without implied limitation (i) payment of all indebtedn
ess evidenced
by the Note; (ii) all present and future obligations of Pledgor under this
Agreement; and (iii) any and all amendments, modifications, renewals and/or
extensions of any of the foregoing, including, but not limited to amendments,
modifications, renewals or extensions which are evidenced by new or additional
instruments, documents or agreements or which change the rate of interest on any
indebtedness or obligations secured hereby. The term "Obligations" as used
herein is intended to mean Obligations in its most comprehensive sense and
includes all present and future indebtedness, liabilities, undertakings,
covenants and other obligations of Pledgor, whether voluntary or involuntary,
absolute or contingent, liquidated or unliquidated, determined or undetermined,
earned or unearned, and due or not due.
3. PLEDGE. Pledgor hereby assigns, grants, pledges and transfers to
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Lender, as security for the payment and performance of the Obligations described
in Paragraph 1 above,
a security interest in, and lien upon all of Pledgor's right, title and interest
in and to the following:
(a) the Shares;
(b) stock powers ("POWERS") duly executed in blank, with such
signatures properly guaranteed covering all of the Shares; and
(c) the proceeds of each of the foregoing including, without
limitation any and all dividends, cash, instruments and other property from time
to time received, receivable, or otherwise distributed in respect of or in
exchange for any of the Shares or Options (the "PROCEEDS"). The Shares, the
Powers, and the Proceeds shall be collectively referred to as the "COLLATERAL".
4. DELIVERIES. Concurrent with the execution hereof, Pledgor has
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delivered Certificate(s) No(s). ____________________, representing all of the
Shares, to Lender together with related Powers or endorsements, to be held
pursuant to the terms hereof for the benefit of Lender.
5. LENDER'S DUTIES. Lender shall have no duty with respect to the
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Collateral other than the duty to use reasonable care if it is in its
possession. Without limiting the generality of the foregoing, Lender shall be
under no obligation to take any steps necessary to preserve rights in the
Collateral against any other parties, to sell same if it threatens to decline in
value, or to exercise any rights represented thereby; provided, however, that
Lender may, at its option, do so, and any and all expenses incurred in
connection therewith shall be for the sole account of Pledgor.
6. VOTING RIGHTS; DIVIDENDS; ETC. During the term of this Agreement
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and as long as no breach of agreement, representation, warranty or obligation of
Pledgor or other event of default, under this Loan Agreement or the Note (an
"EVENT OF DEFAULT"), shall have occurred and be continuing beyond any applicable
cure period:
(a) Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Shares or any part thereof for any
purpose not inconsistent with the terms of this Agreement.
(b) Pledgor shall be entitled to receive and retain any and all
dividends and distributions paid in respect of the Shares provided, however,
that any and all
(i) dividends and distributions paid or payable other than
in cash in respect of, and instruments and other property received, receivable
or otherwise distributed in respect of, or in exchange for, any Shares,
(ii) dividends and distributions paid or payable in cash in
respect of any Shares in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in surplus, and
(iii) cash paid with respect to, payable or otherwise
distributed on redemption of, or in exchange for, any Shares, shall be forthwith
delivered to Lender to hold as Collateral and shall, if received by Pledgor, be
received in trust for the benefit of Lender, be segregated from the other
property or funds of Pledgor, and be forthwith delivered to Lender as Collateral
in the same form as so received (with any necessary endorsement).
(c) Lender shall execute and deliver (or cause to be executed
and delivered) to Pledgor all such proxies and other instruments as Pledgor may
reasonably request for the purpose of enabling Pledgor to exercise those voting
and other rights which it is entitled to exercise pursuant to paragraph 6(a)
above and to receive those dividends or distributions which it is authorized to
receive and retain pursuant to paragraph 6(b) above.
(d) If an Event of Default shall have occurred and be continuing
and any amounts shall be due and payable (whether by acceleration, maturity, or
otherwise) under any of the Obligations, all rights of Pledgor to exercise the
voting and other consensual rights which it would otherwise be entitled to
exercise pursuant to this paragraph 6 and to receive the dividends and
distributions which it would otherwise be authorized to receive and retain
pursuant to this paragraph shall, at Lender's option, cease, and all such rights
shall, at Lender's option, thereupon become vested in Lender so long as an Event
of Default shall continue, and Lender shall, at its option, thereupon have the
sole right to exercise such voting and other consensual rights and to receive
and hold as Collateral such dividends and interest payments.
7. REPRESENTATIONS. Pledgor warrants, represents and covenants that:
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(a) except as set forth in the Securities Act of 1933, as
amended (the "Act") and the May 16, 1994 Shareholders Agreement, there are no
restrictions upon the transfer of any of the Collateral and Pledgor has the
right to pledge and grant a security interest in or otherwise transfer such
Collateral free of any encumbrances or rights of third parties;
(b) all of the Collateral is and shall remain free from all
liens, claims, encumbrances, and purchase money or other security interests, and
Pledgor shall not, without Lender's prior written consent, sell, transfer or
otherwise dispose of any or all of the Collateral;
(c) this Agreement, and the delivery to Lender of the
certificates representing the Shares creates a valid and perfected security
interest in the Collateral in favor of Lender, and all actions necessary or
desirable to such perfection have been duly taken;
(d) no authorization or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required either
(i) for the grant by Pledgor of the security interest granted hereby or for the
execution, delivery or performance of this
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Agreement by Pledgor; (ii) for the perfection of or exercise by Lender of its
rights and remedies hereunder; or (iii) for the exercise by Lender of the voting
or other rights provided for in this Agreement or the remedies in respect of the
Shares pursuant to this Agreement (except as may be required in connection with
a disposition of the Shares by laws affecting the offering and sale of
securities generally);
(e) Pledgor has made its own arrangements for keeping informed
of changes or potential changes affecting the Collateral (including, but not
limited to, rights to convert, rights to subscribe, payment of dividends,
reorganization or other exchanges, tender offers and voting rights) and Pledgor
agrees that Lender shall have no responsibility or liability for informing
Pledgor of any such changes or potential changes or for taking any action or
omitting to take any action with respect thereto; and
(f) All of the outstanding Shares have been duly and validly
issued by Remediation and they are fully paid and nonassessable.
8. SHARE ADJUSTMENT. In the event that during the term of this
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Agreement, any reclassification, readjustment or other change is declared or
made in the capital structure of Borrower, or any Option is exercised, all new
substituted and additional shares, options, or other securities, issued, or
issuable, to Pledgor by reason of any such change or exercise shall be delivered
to and held by Lender under the terms of this Agreement in the same manner as
the Collateral originally pledged hereunder.
9. WARRANTS. In the event that during the term of this Agreement,
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subscription warrants or any other rights or options shall be issued or
exercised in connection with the Collateral, such warrants, rights and options
acquired by Pledgor shall be immediately assigned by Pledgor to Lender and all
new stock or other securities so acquired by Pledgor shall also be immediately
assigned to Lender to be held under the terms of this Agreement in the same
manner as the Collateral originally pledged hereunder.
10. CONSENT. Pledgor hereby consents that, from time-to-time, before
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or after the occurrence or existence of any Event of Default, with or without
notice to or assent from Pledgor, any other security at any time held by or
available to Lender for any of the Obligations or any other security at any time
held by or available to Lender of any other person, firm or corporation
secondarily or otherwise liable for any of the Obligations, may be exchanged,
surrendered, or released and any of the Obligations may be changed, altered,
renewed, extended, continued, surrendered, compromised, waived or released, in
whole or in part, as Lender may see fit, and Pledgor shall remain bound under
this Agreement notwithstanding any such exchange, surrender, release,
alteration, renewal, extension, continuance, compromise, waiver or inaction, or
extension of further credit.
11. REMEDIES UPON DEFAULT. Upon the occurrence of an Event of
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Default, Lender shall have, in addition to any other rights given by law or the
rights hereunder, all of
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the rights and remedies with respect to the Collateral of a secured party under
the California Uniform Commercial Code ("CODE").
In addition, with respect to the Collateral, or any part thereof, upon
ten (10) business days' notice to Pledgor following the occurrence of an Event
of Default and Pledgor's failure to cause such Event of Default to be cured
within such period, Lender may sell or cause the same to be sold at any public
or private sale, in one or more sales or lots, at such price as Lender may deem
best, and for cash or on credit or for future delivery, without assumption of
any credit risk, and the purchaser of any or all of the Collateral so sold shall
thereafter hold the same absolutely, free from any claim, encumbrance or right
of any kind whatsoever.
Any sale of the Collateral conducted in conformity with reasonable
commercial practices of banks, insurance companies or other financial
institutions disposing of property similar to the Collateral and any sale made
through NASDAQ, any securities exchange or any NASD member shall be conclusively
deemed to be commercially reasonable. Any requirements of reasonable notice
shall be met if such notice is mailed to Pledgor, at the address set forth in
the Loan Agreement, at least ten (10) calendar days before the time of the sale
or disposition. Any other retirement of notice, demand or advertisement for
sale, is, to the extent permitted by law, waived.
Lender may, in its own name, or in the name of a designee or nominee,
buy at any public sale of the Collateral, or to the extent permitted by the
Code, at any private sale. Lender shall have the right to execute any document
or form, in its name or in the name of the Pledgor, which may be necessary or
desirable in connection with such sale of Collateral.
In addition to specific rights provided herein with respect to sales
of the Shares, and subject to applicable law, sales of the Collateral may be
conducted with or without demand and with or without notice or advertisement,
for cash, credit or for future delivery, all as the Lender shall deem
appropriate. Without limiting the foregoing, the Lender may (i) approach and
negotiate with potential purchasers, and (ii) restrict the prospective bidders
or purchasers to persons who will represent and agree that they are purchasing
such Collateral for their own account for investment and not with a view to the
distribution or resale thereof. In the event any such Collateral is sold at
private sale, Pledgor agrees that such sale shall not, by reason merely that it
is a private sale subject to the potential restrictions described herein, or
that there is a possibility that a substantially higher price might have been
realized at a public sale, be deemed to have not been made in a commercially
reasonable manner. Pledgor recognizes that no ready market may exist for such
Collateral and that a sale by Lender of any such Collateral for an amount
substantially less than the value of the Shares may be commercially reasonable
in view of the difficulties that may be encountered in attempting to sell a
large block of the securities of Remediation. Upon consummation of any such
sale, Lender shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof, the Collateral so sold. Each such Purchaser of
any such sale shall hold the Property sold absolutely free from any claim or
right on the part of the Pledgor, and Pledgor hereby waives (to the extent
permitted by law) all rights of redemption, stay and/or appraisal which Pledgor
now has or may at any time in the future
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have under any rule of law or statute now existing or hereafter enacted. If any
consent, approval or authorization of any state, municipal or other governmental
agency or authority shall be necessary to effectuate any sale or disposition of
the Collateral, Pledgor shall execute all such applications and other
instruments as may be required in connection with securing any such consent,
approval or authorization and, will otherwise use its best efforts to secure the
same. Under no circumstances will Lender be obligated to register any
securities under the Securities Act of 1933 or any similar qualification or
registration law of any state, unless, in its sole discretion, it shall elect to
do so, in which case the cost of such registration and qualification shall
become part of the Obligations secured hereby.
12. LENDER AS PLEDGOR'S ATTORNEY-IN-FACT. Pledgor hereby irrevocably
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appoints Lender as its attorney-in-fact to arrange for the transfer at any time
of the Collateral on the books of Pledgor to the name of Lender or to the name
of Lender's nominee.
13. FURTHER ASSURANCES. Pledgor agrees that it will cooperate with
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Lender and will execute and deliver, or cause to be executed and delivered, all
such other stock powers, proxies, instruments, and documents and will take all
such other action, as Lender may reasonably request from time to time in order
to carry out the provisions and purposes hereof.
14. ATTORNEYS' FEES AND COSTS. Pledgor hereby agrees to pay all
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reasonable attorneys' fees and all other costs and expenses which may be
incurred by Lender in the enforcement of this Agreement, whether or not suit is
brought.
15. NOTICES. All notices or demands by any party hereto to the other
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party and relating to this Agreement shall be made in the manner and to the
addresses set forth in the Loan Modification Agreement.
16. CALIFORNIA LAW APPLICABLE. This Agreement shall be governed by,
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and construed in accordance with, the laws of the State of California.
17. GENERAL PROVISIONS.
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(a) This Agreement shall be binding and deemed effective when
executed by Pledgor and accepted and executed by Lender.
(b) This Agreement shall bind and inure to the benefit of the
respective successors and assigns of Pledgor and Lender; provided, however, that
Pledgor may not assign this Agreement or any rights hereunder without Lender's
prior written consent and any prohibited assignment shall be absolutely void. No
consent to an assignment by Lender shall release Pledgor from its obligations to
Lender hereunder. Lender may assign its rights and duties hereunder. Lender
reserves the right to sell, assign, transfer, negotiate, or grant participations
in all or any part of, or any interest in rights and benefits hereunder. In
connection therewith, Lender may disclose all documents and information which
Lender now or hereafter may have relating to Pledgor or Pledgor's business.
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(c) Section headings and numbers have been set forth herein for
convenience only. Unless the contrary is compelled by the context, everything
contained in each Section hereof applies equally to this entire Agreement.
(d) Neither this Agreement nor any uncertainty or ambiguity
herein shall be construed or resolved against Lender or Pledgor, whether under
any rule of construction or otherwise, by virtue of such party's having prepared
the same. On the contrary, this Agreement has been reviewed by each of the
parties and their counsel and shall be construed and interpreted according to
the ordinary meaning of the words used so as to fairly accomplish the purposes
and intentions of all parties hereto.
(e) Each provision of this Agreement shall be severable from
every other provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.
(f) This Agreement cannot be changed or terminated orally. All
prior agreements, understandings, representations, warranties, and negotiations,
if any, are merged into this Agreement and the other documents and written
agreements entered into in connection herewith and therewith.
(g) THE PARTIES HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS
AGREEMENT, ANY OF THE LOAN DOCUMENTS OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (2) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO THIS AGREEMENT, THE LOAN DOCUMENTS, OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
THE PARTIES HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO
TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written.
UNITED PANAM FINANCIAL CORP.
A DELAWARE CORPORATION
/s/ XXXXXXXX X. GRILL BY: /s/ XXXXXXXXX XXXX
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XXXXXXXX X. GRILL ITS: Chairman
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