EXHIBIT 10.32
STOCK PLEDGE AGREEMENT
This STOCK PLEDGE AGREEMENT (this "AGREEMENT") is dated as of
November __, 1999 and entered into by and between XXXXXX X. XXXXXXX, AN
INDIVIDUAL("PLEDGOR"), and THE MACERICH COMPANY, a Maryland corporation
("SECURED PARTY").
WITNESSETH
WHEREAS, pursuant to the terms of a promissory note dated of even date
herewith executed by Pledgor in favor of Secured Party (said promissory note, as
it may hereafter be amended, supplemented or otherwise modified from time to
time, being the "NOTE," the terms defined therein and not otherwise defined
herein being used herein as therein defined), Secured Party has agreed to loan
(the "LOAN") up to one million dollars ($1,000,000) to Pledgor;
WHEREAS, the proceeds of the Loan will be used to pay for the purchase
by Pledgor of shares of common stock of the Secured Party; and
WHEREAS, as a condition to the making of such Loans by Secured Party
the repayment of which is evidenced by the Note, Pledgor has agreed to grant the
security interests and undertake the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to
induce Secured Party to make the Loan the repayment of which is evidenced by the
Note and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Pledgor hereby agrees with Secured Party as
follows:
SECTION 1. CERTAIN DEFINITIONS. The following terms used in this
Agreement shall have the following meanings:
"AGREEMENT" means this Pledge Agreement dated as of November __, 1999
by and between Pledgor and Secured Party.
"BOARD" means the Board of Directors of Secured Party, or the
Compensation Committee thereof.
"CONTRACTUAL OBLIGATION," as applied to any Person, means any
provision of any security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person
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is a party or by which it or any of its properties is bound or to which it or
any of its properties is subject.
"EVENT OF DEFAULT" has the meaning assigned to such term in the Note.
"FAIR MARKET VALUE," with respect to shares of the Company's common
stock or any other securities, means the average closing sale price as reported
on the New York Stock Exchange (or such other national exchange or market system
on which the Company's common stock or such other securities may then be listed
or quoted) for the ten (10) trading days immediately preceding the date of
valuation or such other method as may be required by applicable Legal Limits,
or, if the Company's common stock or such other securities are not listed or
quoted on a national exchange or market system, then a value determined in good
faith by the Board. "Fair Market Value," with respect to any other property
shall be determined in good faith by the Board of Directors.
"LEGAL LIMITS" means any legal restrictions applicable to the release
of the Pledged Collateral and the extension or maintenance of credit or its
repayment, including without limitation those included in Regulation G of the
Federal Reserve Board.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LOAN" has the meaning assigned to such term in the recitals to this
Agreement.
"MANDATORY REPAYMENT OBLIGATIONS" means the obligations of Pledgor to
repay the Note pursuant to Section 2 of the Note.
"NOTE" has the meaning assigned to such term in the recitals to this
Agreement.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"PLEDGED COLLATERAL" has the meaning assigned to such term in
Section 2.
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"PLEDGED SHARES" means all shares of common stock of the Company
purchased by Pledgor using the proceeds of the Loan, and any other securities
into which such shares are converted or reclassified (by stock split, merger,
extraordinary distribution or otherwise) or for which such shares are exchanged
by operation of law or consent of Secured Party.
"PLEDGOR" means Xxxxxx X. Xxxxxxx, Xx.
"PROCEEDS" has the meaning assigned to such term in Section 2(c).
"SEC" means the Securities and Exchange Commission.
"SECURED OBLIGATIONS" has the meaning assigned to such term in
Section 3.
"SECURED PARTY" means The Macerich Company, a Maryland corporation,
and its successors and assigns by operation of law or otherwise.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"UNDERLYING DEBT" has the meaning assigned to such term in Section 3.
SECTION 2. PLEDGE OF SECURITY. Subject to Section 8(a), Pledgor hereby
pledges and assigns to Secured Party, and hereby grants to Secured Party a
security interest in, all of Pledgor's right, title and interest in and to the
following and all interests therein (the "PLEDGED COLLATERAL"):
(a) the Pledged Shares and the certificates representing the Pledged
Shares and any interest of Pledgor in the entries on the books of any financial
intermediary pertaining to the Pledged Shares, and all dividends, warrants,
rights, securities, instruments and other property or proceeds distrib uted in
respect of or in exchange for any or all of the Pledged Shares; and
(b) all proceeds of any or all of the foregoing Pledged Collateral.
For purposes of this Agreement, the term "PROCEEDS" includes whatever is
receivable or received when Pledged Collateral or proceeds are sold, exchanged,
collected or otherwise disposed of, whether such disposition is voluntary or
involuntary, and includes, without limitation, proceeds of any indemnity or
guaranty payable to Pledgor or Secured Party from time to time with respect to
any of the Pledged Collateral.
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SECTION 3. SECURITY FOR OBLIGATIONS. This Agreement secures, and the
Pledged Collateral is collateral security for, the prompt payment or performance
in full when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including the payment of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)), of all obligations and
liabilities of every nature of Pledgor now or hereafter existing under or
arising out of or in connection with the Note and all extensions or renewals
thereof, whether for principal, interest (including without limitation interest
that, but for the filing of a petition in bankruptcy with respect to Pledgor,
would accrue on such obligations), fees, expenses, indemnities or otherwise,
whether voluntary or involuntary, direct or indirect, absolute or contingent,
liquidated or unliquidated, whether or not jointly owed with others, and whether
or not from time to time decreased or extinguished and later increased, created
or incurred, and all or any portion of such obligations or liabilities that are
paid, to the extent all or any part of such payment is avoided or recovered
directly or indirectly from Secured Party as a preference, fraudulent transfer
or otherwise (all such obligations and liabilities being the "UNDERLYING DEBT"),
and all obligations of every nature of Pledgor now or hereafter existing under
this Agreement (all such obligations of Pledgor, together with the Underlying
Debt, being the "SECURED OBLIGATIONS").
SECTION 4. DELIVERY OF PLEDGED COLLATERAL. All certificates or
instruments representing or evidencing the Pledged Collateral shall be delivered
to and held by or on behalf of Secured Party pursuant hereto and shall be in
suitable form for transfer by delivery or, as applicable, shall be accompanied
by Pledgor's endorsement, where necessary, or duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to
Secured Party. Secured Party shall have the right, at any time in its discretion
and without notice to Pledgor, to transfer to or to register in the name of
Secured Party or any of its nominees any or all of the Pledged Collateral. In
addition, Secured Party shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Pledgor represents and
warrants that, as of the date that the Loan is made and at all times that the
Loan remains outstanding:
(a) GOOD TITLE. Pledgor is the record and beneficial owner of, and
has good and marketable title to, the Pledged Shares and such shares are and
will remain free and clear of all adverse claims, pledges, liens, security
interests and other encumbrances, restrictions and rights whatsoever, except the
lien and security interest created by this Pledge Agreement.
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(b) BINDING OBLIGATION. Each of the Note and this Agreement has been
duly executed and delivered by Pledgor and is the legally valid and binding
obligation of Pledgor, enforceable against him in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or limiting
creditors' rights generally.
(c) PERFECTION. The pledge of the Pledged Collateral pursuant to this
Agreement creates a valid and perfected first priority security interest in the
Pledged Collateral, securing the payment of the Secured Obligations.
(d) OTHER INFORMATION. All information heretofore, herein or
hereafter supplied to Secured Party by or on behalf of Pledgor with respect to
the Pledged Collateral is and will be accurate and complete in all respects.
(e) NO CONSENTS. No consent, approval or authorization of or
designation or filing with any authority or third party on the part of Pledgor
is required in connection with the execution, delivery or performance of the
Note, this Agreement or the pledge and security interest granted pursuant to
this Agreement.
SECTION 6. TRANSFERS AND OTHER LIENS; ADDITIONAL PLEDGED COLLATERAL;
RELEASE OF COLLATERAL.
(a) Pledgor shall not, without the prior written consent of Secured
Party (i) sell, assign (by operation of law or otherwise) or otherwise dispose
of, or grant any option with respect to, any of the Pledged Collateral or (ii)
create or suffer to exist any Lien upon or with respect to any of the Pledged
Collateral, except for the security interest under this Agreement.
(b) Pledgor shall pay promptly when due all taxes, assessments and
governmental charges or levies imposed upon, and all claims against, the Pledged
Collateral, except to the extent the validity thereof is being contested in good
faith; PROVIDED that Pledgor shall in any event pay such taxes, assessments,
charges, levies or claims not later than five days prior to the date of any
proposed sale under any judgement, writ or warrant of attachment entered or
filed against Pledgor or any of the Pledged Collateral as a result of the
failure to make such payment.
(c) Secured Party currently anticipates that it will consent to a
sale, assignment, transfer or other disposition (each, a "TRANSFER") of all or
any portion of the Pledged Collateral so long as: (i) Pledgor repays the Note to
the extent required by Section 2(b) thereof; (ii) no Event of Default is is
continuing under the Note and Pledgor is not in default of his obligations
hereunder; and (iii) the sale, assignment, transfer
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or disposition, including the effect thereof on Secured Party, complies with
Section 1.8 of The Macerich Company Amended and Restated 1994 Incentive Plan and
any applicable Legal Limits (as determined by the Board in its sole discretion).
In the event of any such Transfer of Pledged Collateral to which Secured Party
has given its consent, Secured Party shall release its security interest and
lien with respect to the Pledged Collateral so transferred in accordance with
Section 6(d) below. Such release shall take place promptly upon receipt of the
proceeds of any required prepayment under the Note or, to the extent permitted
by applicable law, in advance of Secured Party's receipt of the proceeds if
Secured Party has received assurances satisfactory to Secured Party that such
release would be in conformity with any applicable Legal Limits and that all
such proceeds will be delivered to Secured Party. With respect to any
disposition of the Pledged Collateral under this Section 6(c), Pledgor shall pay
all costs and expenses, including broker's commissions, of such disposition.
(d) Upon any repayment of the principal of the Loan, whether a
voluntary or mandatory repayment, Secured Party shall, subject to any applicable
Legal Limits, release that percentage of the Pledged Collateral obtained by
dividing (i) the amount of such repayment, by (ii) the unpaid principal balance
of the Loan (prior to the repayment); PROVIDED, HOWEVER, that Pledged Collateral
shall be released only to the extent that the Fair Market Value of Pledged
Collateral remaining after such release is at least equal to the remaining
unpaid principal amount of the Loan.
(e) Notwithstanding anything in this Section 6 to the contrary,
Pledgor may not sell, transfer, assign or otherwise dispose of any part of the
Pledged Collateral at any time that such sale, transfer, assignment or
disposition: (i) would violate any applicable Legal Limits or other applicable
law, including without limitation restrictions on xxxxxxx xxxxxxx; (ii) would
impair the Payee's ability to have any then-pending or completed transaction be
accounted for as a pooling of interests; or (iii) is prohibited by Secured
Party's policies relating to xxxxxxx xxxxxxx of its stock.
SECTION 7. FURTHER ASSURANCES; PLEDGE AMENDMENTS.
Pledgor agrees that from time to time Pledgor will promptly execute
and deliver all further instruments and documents, and take all further action,
that may be necessary or desirable, or that Secured Party may request, in order
to perfect and protect any security interest granted or purported to be granted
hereby or to enable Secured Party to exercise and enforce its rights and
remedies hereunder with respect to any Pledged Collateral. Without limiting the
generality of the foregoing, Pledgor will: (i) execute and file such financing
or continuation statements, or amendments thereto, and such other
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instruments or notices, as may be necessary or desirable, or as Secured Party
may request, in order to perfect and preserve the security interests granted or
purported to be granted hereby; (ii) deliver any certificates representing any
security issued in connection with any share dividend, share distribution, or
any other rights, whether as an addition to, in substitution for, or in exchange
for any of the Pledged Collateral together with stock transfer powers duly
endorsed in blank; and (iii) at Secured Party's request, appear in and defend
any action or proceeding that may affect Pledgor's title to or Secured Party's
security interest in all or any part of the Pledged Collateral.
SECTION 8. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Collateral or any
part thereof for any purpose not inconsistent with the terms of this
Agree ment or the Note.
(ii) Subject to the Mandatory Repayment Obligations, Pledgor may
retain, and may utilize free and clear of the lien of this Agreement,
all dividends, distributions and other payments paid (or payable) in
cash with respect to the Pledged Collateral.
(iii) All dividends, distributions and other payments 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 Pledged Collateral shall be, and shall
forthwith be delivered to, Secured Party to hold as Pledged Collateral
and shall, if received by Pledgor, be received in trust for the
benefit of Secured Party, be segregated from the other property or
funds of Pledgor and be forthwith delivered to Secured Party as
Pledged Collateral in the same form as so received (with all necessary
endorsements); PROVIDED THAT Pledgor may retain, to the extent
divisible, the portion of such non-cash dividends, distributions and
other payments that the Board reasonably determines must be used by
Pledgor for the sole purpose of paying taxes applicable to such
dividends, distributions or other payments.
(iv) Secured Party shall promptly execute and deliver (or cause
to be executed and delivered) to Pledgor all such proxies, dividend
payment orders and other instruments as Pledgor may from time to time
reasonably request for the purpose of enabling Pledgor
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to exercise the voting and other consensual rights which it is
entitled to exercise pursuant to paragraph (i) above and to receive
the dividends, principal or interest payments which it is authorized
to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuation of an Event of
Default:
(i) Upon written notice from Secured Party to Pledgor, all
rights of Pledgor to exercise the voting and other consensual rights
which it would otherwise be entitled to exercise pursuant to Section
8(a)(i) shall cease, and all such rights shall thereupon become vested
in Secured Party who shall thereupon have the sole right to exercise
such voting and other consensual rights.
(ii) Without limiting the Mandatory Repayment Obligations, all
rights of Pledgor to receive the dividends, distributions and other
payments which it would otherwise be authorized to receive and retain
pursuant to Section 8(a)(ii) shall cease, and all such rights shall
thereupon become vested in Secured Party who shall thereupon have the
sole right to receive and hold as Pledged Collateral such dividends
and interest payments.
(iii) All dividends, distributions and other payments which are
received by Pledgor contrary to the provisions of paragraph (ii) of
this Section 8(b) shall be received in trust for the benefit of
Secured Party, shall be segregated from other funds of Pledgor and
shall forthwith be paid over to Secured Party as Pledged Collateral in
the same form as so received (with any necessary endorsements).
(c) In order to permit Secured Party to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to Section
8(b)(i) and to receive all dividends and other distributions which it may be
entitled to receive under Section 8(a)(ii) or Section 8(b)(ii), (i) Pledgor
shall promptly execute and deliver (or cause to be executed and delivered) to
Secured Party all such proxies, dividend payment orders and other instruments as
Secured Party may from time to time reasonably request and (ii) without limiting
the effect of the immediately preceding clause (i), Pledgor hereby grants to
Secured Party an irrevocable proxy to vote (to the extent permitted by law) the
Pledged Shares and to exercise all other rights, powers, privileges and remedies
to which a holder of the Pledged Shares would be entitled (including, without
limitation, giving or withholding written consents of shareholders, calling
special meetings of shareholders and voting at such meetings), which proxy shall
be effective, automatically and without the necessity
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of any action (including any transfer of any Pledged Shares on the record books
of the issuer thereof) by any other Person (including the issuer of the Pledged
Shares or any officer or agent thereof), upon the occurrence of an Event of
Default and which proxy shall only terminate upon the payment in full of the
Secured Obligations or the curing (as determined by Secured Party) of such Event
of Default.
SECTION 9. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Pledgor hereby
irrevocably appoints Secured Party as Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor, Secured
Party or otherwise, from time to time in Secured Party's discretion to take any
action and to execute any instrument that Secured Party may deem necessary or
advisable to accomplish the purposes of this Agreement, including without
limitation:
(a) to file one or more financing or continuation statements, or
amendments thereto, relative to all or any part of the Pledged Collateral
without the signature of Pledgor;
(b) to ask, demand, collect, xxx for, recover, compound, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Pledged Collateral;
(c) to receive, endorse and collect any instruments made payable to
Pledgor representing any dividend, principal or interest payment or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same; and
(d) to file any claims or take any action or institute any
proceedings that Secured Party may deem necessary or desirable for the
collection of any of the Pledged Collateral or otherwise to enforce the rights
of Secured Party with respect to any of the Pledged Collateral.
SECTION 10. SECURED PARTY MAY PERFORM. If Pledgor fails to perform any
agreement contained herein, Secured Party may itself perform, or cause
performance of, such agreement, and the expenses of Secured Party incurred in
connection therewith shall be payable by Pledgor under Section 13(b).
SECTION 11. STANDARD OF CARE. The powers conferred on Secured Party
hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the exercise
of reasonable care in the custody of any Pledged Collateral in its possession
and the accounting for moneys actually received by it hereunder, Secured Party
shall have no duty as to any Pledged Collateral, it being understood that
Secured Party shall have no responsibility for (a) ascertaining or taking action
with respect to calls,
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conversions, exchanges, maturities, tenders or other matters relating to any
Pledged Collateral, whether or not Secured Party has or is deemed to have
knowledge of such matters, (b) taking any necessary steps (other than steps
taken in accordance with the standard of care set forth above to maintain
possession of the Pledged Collateral) to preserve rights against any parties
with respect to any Pledged Collateral, (c) taking any necessary steps to
collect or realize upon the Secured Obligations or any guarantee therefor, or
any part thereof, or any of the Pledged Collateral, or (d) initiating any action
to protect the Pledged Collateral against the possibility of a decline in market
value. Secured Party shall be deemed to have exercised reasonable care in the
custody and preservation of Pledged Collateral in its possession if such Pledged
Collateral is accorded treatment substantially equal to that which Secured Party
accords its own property consisting of negotiable securities.
SECTION 12. REMEDIES.
(a) If any Event of Default shall have occurred and be continuing,
all of the Secured Obligations shall immediately become due and payable and
Secured Party may exercise in respect of the Pledged Collateral, in addition to
all other rights and remedies provided for herein or otherwise available to it,
all the rights and remedies of a secured party on default under the Uniform
Commercial Code as in effect in any relevant jurisdiction (whether or not the
Uniform Commercial Code applies to the affected Pledged Collateral). Secured
Party shall have full recourse to Pledgor (directly and as to a deficiency in
respect of the Pledged Collateral) and the Pledged Collateral in respect of the
Secured Obligations arising under the Note. In exercising its remedies against
the Pledged Collateral, Secured Party may, upon ten (10) days' written notice to
Pledgor, but without any other demand or notice whatsoever, transfer ownership
of the Pledged Collateral to Secured Party in discharge of the Secured
Obligations to the extent of the Fair Market Value of the Pledged Collateral so
transferred, to the extent required to pay all of the Secured Obligations, such
transfer to be free and clear of any right or equity of redemption, which right
or equity is hereby expressly waived and released.
(b) In the event that Pledged Collateral is transferred to Secured
Party in discharge of any or all of the Secured Obligations as set forth in the
last sentence of the foregoing paragraph, such transfer shall be applied first
to all costs and expenses of such transfer and second to the Secured Obligations
arising in respect of the Note (first to interest and then to principal). All
proceeds received by Secured Party in respect of any sale of, collection from,
or other realization upon all or any part of the Pledged Collateral shall be
applied first to all costs and expenses of such sale, collection or other
realization and second to the Secured Obligations arising in respect of the Note
(first to interest and then to principal).
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In the event that the amount received from the sale of, collection from, or
other realization upon the Pledged Collateral, or in the case of a transfer of
the Pledged Collateral to Secured Party, the Fair Market Value of the Pledged
Collateral, exceeds the aggregate amount of the Secured Obligations (plus the
costs and expenses described above) Secured Party shall pay such excess to or
upon the order of Pledgor, or to whosoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct. All rights and
remedies hereunder are in addition to whatever other rights the parties hereto
may otherwise have against one another, and no exercise of any such rights or
remedies shall be deemed to preclude the exercise of any other rights or
remedies.
(c) Pledgor recognizes that Secured Party may be unable to effect a
public sale or disposition of any or all the Pledged Collateral by reason of
certain prohibitions contained in the Securities Act, the rules promulgated by
the SEC thereunder, and applicable state securities laws but may be compelled to
resort to one or more private sales or dispositions thereof to a restricted
group of purchasers who will be obliged to agree, among other things, to acquire
such securities for their own account for investment and not with a view to the
distribution or resale thereof. Pledgor acknowledges and agrees that any such
private sale or disposition may result in prices and other terms (including the
terms of any securities or other property received in connection therewith) less
favorable to the seller than if such sale or disposition were a public sale or
disposition and, notwithstanding such circumstances, agrees that any such
private sale or disposition shall be deemed to have been made in a commercially
reasonable manner. Secured Party shall be under no obligation to delay a sale or
disposition of any of the Pledged Collateral to permit the registration of such
securities (or trust certificates representing such securities) for public sale
under the Act, or under applicable state securities laws, even if the Company
would agree to do so.
(d) Pledgor further agrees to do or cause to be done all such other
acts and things as may be necessary to make such sale or sales or dispositions
of any portion or all of the Pledged Collateral valid and binding and in
compliance with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales or dispositions, all at Pledgor's expense. Pledgor
further agrees that a breach of any of the covenants contained in this Section
12 will cause irreparable injury to Secured Party, that Secured Party has no
adequate remedy at law in respect of such breach and, as a consequence, agrees
that each and every covenant contained in this section shall be specifically
enforceable against Pledgor, and Pledgor hereby waives and agrees not to assert
any defenses against an action for specific performance of such covenants
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except for a defense that no Event of Default has occurred hereunder.
(e) If Secured Party determines to exercise its right to sell any or
all of the Pledged Collateral, upon written request, Pledgor shall and shall
cause each issuer of any Pledged Shares to be sold hereunder from time to time
to furnish to Secured Party all such information as Secured Party may request in
order to determine the number of shares and other instruments included in the
Pledged Collateral which may be sold by Secured Party in exempt transactions
under the Securities Act and the rules and regulations of the SEC thereunder, as
the same are from time to time in effect.
SECTION 13. INDEMNITY. Pledgor agrees to indemnify Secured Party from
and against any and all claims, losses and liabilities in any way relating to,
growing out of or resulting from this Agreement and the transactions
contemplated hereby (including, without limitation, enforcement of this
Agreement), except to the extent such claims, losses or liabilities result
solely from Secured Party's gross negligence or willful misconduct as finally
determined by a court of competent jurisdiction.
SECTION 14. CONTINUING SECURITY INTEREST; TRANSFER OF NOTE. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (a) remain in full force and effect until the payment in full of all
Secured Obligations, (b) be binding upon Pledgor, its successors and assigns,
and (c) inure, together with the rights and remedies of Secured Party hereunder,
to the benefit of Secured Party and its successors and assigns by operation of
law or otherwise. Upon the payment in full of all Secured Obligations, the
security interest granted hereby shall terminate and all rights to the Pledged
Collateral shall revert to Pledgor. Upon any such termination Secured Party
will, at Pledgor's expense, execute and deliver to Pledgor such documents as
Pledgor shall reasonably request to evidence such termination and Pledgor shall
be entitled to the return, upon its request and at its expense, against receipt
and without recourse to Secured Party, of such of the Pledged Collateral as
shall not have been sold or otherwise applied pursuant to the terms hereof.
SECTION 15. AMENDMENTS; ETC. No amendment, modification, termination
or waiver of any provision of this Agreement, and no consent to any departure by
Pledgor therefrom, shall in any event be effective unless the same shall be in
writing and signed by Secured Party and, in the case of any such amendment or
modification, by Pledgor. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
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SECTION 16. NOTICES. Any notice or other communication herein required
or permitted to be given shall be in writing and may be personally served,
telexed or sent by telefacsimile or United States mail or courier service and
shall be deemed to have been given when delivered in person or by courier
service, upon receipt of telefacsimile (with answer-back confirmation) or telex,
or three business days after depositing it in the United States mail with
postage prepaid and properly addressed. For the purposes hereof, the address of
each party hereto shall be as set forth under such party's name on the signature
pages hereof or, as to either party, such other address as shall be designated
by such party in a written notice delivered to the other party hereto.
SECTION 17. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Secured Party in the exercise of any power,
right or privilege hereunder shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude any
other or further exercise thereof or of any other power, right or privilege. All
rights and remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
SECTION 18. SEVERABILITY. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 19. HEADINGS. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
SECTION 20. GOVERNING LAW; TERMS. This Agreement and the rights and
obligations of the parties hereunder shall be governed by, and shall be
construed and enforced in accordance with the laws of the State of California
except: (i) for such matters as are subject to the jurisdiction of the General
Corporation Law of the State of Maryland; and (ii) to the extent that the
Uniform Commercial Code in effect in any jurisdiction provides that the validity
or perfection of the security interest hereunder, or remedies hereunder, in
respect of any particular pledged collateral are governed by the laws of a
jurisdiction other than the State of California. Unless otherwise defined herein
or in the Note, terms used in Articles 8 and 9 of the Uniform Commercial Code in
the State of California are used herein as therein defined.
13
SECTION 21. COUNTERPARTS. This Agreement and any amendment hereto may
be executed in one or more counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
14
IN WITNESS WHEREOF, Pledgor and Secured Party have caused this
Agreement to be duly executed and delivered as of the date first written above.
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Xxxxxx X. Xxxxxxx
Notice Address:
Xxxxxx X. Xxxxxxx
c/o The Macerich Company
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, XX 00000
THE MACERICH COMPANY
----------------------------------
Xxxxxxx X. Xxxxx
Executive Vice President &
General Counsel
Notice Address:
The Macerich Company
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
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