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EXHIBIT 4
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT ("Agreement") is made and entered into as of
the 19th day of January, 2001 by and between HAH Holdings LLC, a Delaware
limited liability company with its principal place of business at 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 ("Pledgor") and American
National Bank and Trust Company of Chicago, a national banking association with
its principal place of business at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 ("Pledgee").
PRELIMINARY STATEMENT
A. Pledgee has agreed to make a term loan to Pledgor and Xxxxx X.
Xxxxxx, an individual residing at 00 Xxxxx Xxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxx
00000 ("Baretz") in the aggregate amount of $4,000,000 (the "Term Loan")
pursuant to a Loan and Security Agreement by and among Pledgor, Baretz and
Pledgee of even date herewith (the "Loan Agreement") which is evidenced by a
secured promissory note of even date herewith executed by Pledgor and Baretz
(the "Term Note").
B. Pledgor owns fifty two percent (52%) of the shares of common stock
of Help at Home, Inc., a Delaware corporation (the "Help at Home Stock").
C. As a condition precedent to making the Term Loan to Pledgor and
Baretz, Pledgee has requested that Pledgor pledge the Help at Home Stock and the
stock of any other entity acquired by Pledgor during the term hereof to Pledgee
as security for the payments due under the Term Note.
NOW, THEREFORE, in consideration of the premises set forth herein, it
is hereby agreed as follows:
1. Collateral. The term "Collateral" shall mean the Help at Home Stock,
whether now owned or hereafter acquired, and the stock of any other entity
acquired by Pledgor during the term hereof (collectively, the "Securities"), the
proceeds or products of any sale or other disposition thereof, as well as all
dividends, distributions and other amounts or additional securities to which
Pledgor (with or without additional consideration) is or becomes entitled by
virtue of its ownership of any of the Securities or as the result of any
corporate reorganization, merger, consolidation, stock split, stock dividend,
conversion, preemptive right or otherwise.
2. Deposit of Collateral. To secure payment of the obligations of the
Pledgor and Oxford Holdings under the Term Note, Pledgor hereby pledges and
deposits the Help at Home Stock with Pledgee and hereby grants to Pledgee a
valid and perfected first lien on and security interest in the Securities and
other items of the Collateral.
3. Representations and Warranties. Pledgor hereby represents and warrants
to Pledgee that as to the Collateral deposited by such Pledgor with Pledgee on
the date hereof, (i) Pledgor is the legal and beneficial owner of such
Collateral; (ii) such Collateral is validly issued, fully paid and
non-assessable and is registered in the name of Pledgor; (iii) the pledge of
Collateral pursuant to the terms of this Agreement, together with delivery
thereof, creates a valid and perfected first lien on and security interest in
such Collateral in favor of Pledgee; (iv) the stock power attached to the
certificate(s) representing such Collateral have been duly executed and
delivered by Pledgor to Pledgee; (v) none of such Collateral is subject to any
lien, except for the perfected first security interest granted to Pledgee hereby
and, so long as any portion of the Term Note remains unpaid, Pledgor will not
create or permit to exist any lien upon or with respect to such Collateral
without the consent of Pledgee; and (vi) Pledgor will not sell, transfer,
convey, assign or otherwise divest its interests in such Collateral, or any part
thereof, to any other person.
4. Stock Splits, Stock Dividends, Etc.
4.1 Pledgor agrees that with respect to all Securities acquired after the
date of this Agreement and if by virtue of Pledgor's ownership of the
Securities, Pledgor becomes entitled (with or without additional consideration)
to other or additional Securities as the result of any corporate reorganization,
merger, consolidation, stock split, stock dividend, conversion or preemptive
right or otherwise, such Pledgor shall:
4.1.1 Cause the issuer of such additional Securities to deliver to
Pledgee the certificates evidencing
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Pledgor's ownership thereof and hereby authorizes and empowers Pledgee
to demand the same from such issuer, and agrees if such certificates
are delivered to Pledgor, to take possession thereof in trust for
Pledgee;
4.1.2 Deliver to Pledgee a stock power with respect to such
Securities, executed in blank by Pledgor;
4.1.3 Deliver to Pledgee such other certificates, forms and other
instruments as Pledgee may request in connection with such pledge.
4.2 Pledgor agrees that such additional Securities shall constitute a
portion of the Collateral and be subject to this Pledge Agreement in the same
manner and to the same extent as the securities pledged hereby to Pledgee on the
date hereof.
5. Dividend Rights/Voting Power. Unless and until an Event of Default shall
have occurred under the Loan Agreement and such default shall not have been
cured within the applicable cure period, Pledgor shall be entitled to receive
all dividends paid on the Securities and to exercise all voting powers in all
corporate matters pertaining to the Securities for any purpose not inconsistent
with, or in violation of, the provisions of the Loan Agreement or the Term Note.
6. Default and Remedies.
6.1 If an Event of Default shall occur under the Loan Agreement and such
default shall not have been cured within the applicable cure period, Pledgee, at
its option, may:
6.1.1 Cause the Collateral to be registered in its name or in the
name of its nominee;
6.1.2 Exercise all voting powers pertaining to the Collateral and
otherwise act with respect thereto as though Pledgee were the
owner thereof;
6.1.3 Receive all dividends and all other distributions of any
kind whatsoever on all or any of such Collateral;
6.1.4 Exercise any and all rights of collection, conversion or
exchange, and any and all other rights, privileges, options or
powers of Pledgor pertaining or relating to the Collateral;
6.1.5 Sell, assign and deliver the whole, or from time to time, any
part of such Collateral at any private sale, with or without
demand for performance or advertisement of the time or place
of sale or adjournment thereof or otherwise, and free from any
right of redemption (all of which hereby expressly are waived
by Pledgor) for cash, for credit or for other property, for
immediate or future delivery, and for such price and on such
terms as Pledgee in its sole discretion may determine; and
6.1.6 Exercise any other remedy specifically granted under this
Agreement or now or hereafter existing in equity or at law, by
virtue of statute or otherwise.
With respect to the actions described in each of subsections 6.1.2 and 6.1.4
above, Pledgor hereby irrevocably constitutes and appoints Pledgee its proxy and
attorney-in-fact with full power of substitution and acknowledges that the
constitution and appointment of such proxy and attorney-in-fact are coupled with
an interest and are irrevocable.
6.2 At any sale made pursuant to Section 6.1 above, Pledgee may bid
for and purchase, free from any right or equity of redemption on the part
of the Pledgor (the same hereby being waived and released by Pledgor), any
part or all of the Collateral that is offered for sale, and Pledgee, upon
compliance with the terms of sale and other applicable federal regulatory
requirements, may hold, retain and dispose of such Collateral without
further accountability therefor.
6.3 Pledgee shall apply the proceeds of any sale of the whole or any
part of the Collateral and any other monies at the time held by Pledgee
under the provisions of this Agreement in satisfaction of the Term Note.
6.4 Pledgee shall not have any duty to exercise any of the rights,
privileges, options or powers or, except as otherwise required by law, to
sell or otherwise realize upon any of the Collateral, as hereinbefore
authorized, and Pledgee
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shall not be responsible for any failure to do so or delay in so doing.
6.5 Any sale of all or any portion of the Collateral pursuant to
Section 6.1 above shall operate to divest all right, title and interest of
the Pledgor to the Collateral which is the subject of any such sale.
6.6 Pledgor acknowledges that Pledgee may be unable to effect a public
sale of all or a part of the Collateral or that it may be able to do so
only after delay which might adversely affect the value that might be
realized upon the sale of the Collateral. Accordingly, Pledgor agrees that
Pledgee may sell the Collateral or any part thereof in one or more private
sales to a restricted group of purchasers who may be required to agree,
among other things, that they are acquiring the Collateral for their own
account, for investment purposes only, and not with a view toward the
distribution or resale thereof. Pledgor agrees that any such private sale
may be at prices or on terms less favorable to the owner of the Collateral
than would be the case if such Collateral was sold at public sale, and that
any such private sale shall not be deemed not to have been made in a
commercially reasonable manner by virtue of such sale having been a private
sale.
6.7 Pledgee shall give not less than ten (10) business days prior
written notice to the Pledgor of any sale pursuant to this Section 6.
Pledgor hereby agrees that such notice is commercially reasonable.
9. Pledgee's Obligations, Custodial Agreement, Performance Rights,
Pledge Does Not Make Pledgee Shareholder. Pledgee shall not have any duty
to protect, preserve or enforce rights against the Collateral other than a
duty of reasonable custodial care of any such Collateral in its possession,
it being understood that Pledgee shall have no responsibility for (i)
ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relating to the Collateral,
whether or not Pledgee has or is deemed to have knowledge of such matters,
or (ii) taking any necessary steps to preserve rights against any parties
with respect to the Collateral, or (iii) making any capital contributions
or other payments on behalf of Pledgor with respect to the Collateral.
10. Termination of Pledge Agreement. Upon the payment and performance
in full of all amounts due under the Term Note, the Pledgee shall deliver
to the Pledgor the Collateral in its possession and this Agreement
thereupon shall be terminated.
11. Miscellaneous.
11.1 Each and every right, remedy and power granted to Pledgee
hereunder shall be cumulative and in addition to any other right, remedy or
power specifically granted herein or now or hereafter existing in equity or
at law, by virtue of statute or otherwise and may be exercised by Pledgee,
from time to time, concurrently or independently and as often and in such
order as Pledgee may deem expedient. Any failure or delay on the part of
Pledgee in exercising any such right, remedy or power, or abandonment or
discontinuance of steps to enforce the same, shall not operate as a waiver
thereof or affect Pledgee's right thereafter to exercise the same, and any
single or partial exercise of any such right, remedy or power shall not
preclude any other right, remedy or power, and no such failure, delay,
abandonment or single or partial exercise of Pledgee's rights hereunder
shall be deemed to establish a custom or course of dealing or performance
among the parties hereto.
11.2 Any modification or waiver of any provision of this Agreement, or
any consent to any departure by Pledgor therefrom, shall not be effective
in any event unless the same is in writing and signed by Pledgee, and then
such modification, waiver or consent shall be effective only in the
specific instance and for the specific purpose given. Any notice to or
demand on Pledgor in any event not specifically required of Pledgee
hereunder shall not entitle Pledgor to any other or further notice or
demand in the same, similar or other circumstances unless specifically
required hereunder.
11.3 Pledgor agrees that at any time, and from time to time, after the
execution and delivery of this Agreement, Pledgor shall, upon the request
of Pledgee and at the expense of Pledgor, promptly execute and deliver such
further documents and do such further acts and things as Pledgee may
request in order to effect fully the purposes of this Agreement and to
subject to the security interest created hereby any property intended by
the provisions hereof to be covered hereby.
11.4 Pledgor agrees that it will warrant, preserve, maintain and
defend, at its own expense, the right, title and interest of Pledgee in and
to the Collateral and all right, title and interest represented thereby
against all claims, charges and demands of all persons whomsoever.
11.5 Any notice or other communication herein required or permitted to
be given shall be in writing and may be
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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 or telex, or three (3)
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 provided in the Loan Agreement or at such other address as
such party may subsequently advise the other parties hereto.
11.6 In the event that any provision of this Agreement is deemed to be
invalid 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 and the invalidity of such
provision shall not affect the validity of any other provision hereof, and
any and all other provisions hereof which otherwise are lawful and valid
shall remain in full force and effect.
11.7 This Agreement shall inure to the benefit of the successors and
assigns of Pledgee and shall be binding upon the heirs, legatees,
administrators, legal representatives, successors and assigns of Pledgor.
11.8 This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall be one and the same instrument.
11.9 This Agreement and the rights and duties of the Guarantor shall be
governed by, and construed in accordance with, the internal laws of the State
of Illinois without regard to principles of conflicts of laws which would
require the application of the laws of a different jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PLEDGOR:
HAH HOLDINGS LLC, a Delaware
limited liability company
By: /s/ Xxxxx X. Xxxxxx
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Its: Chairman
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Accepted by: PLEDGEE:
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
By: /s/
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Its:
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