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EXHIBIT 10.2
STOCK PLEDGE AGREEMENT
October 24, 1996
The Enstar Group, Inc. ("Pledgor") and First Union National Bank of
Georgia ("Bank"), agree as follows:
1. DEFINITIONS. Whenever the following terms are used herein,
they shall be defined as follows:
"Agreement" or "this Agreement" shall mean and include all
amendments, modifications and supplements hereto and shall refer to this
Agreement as the same may be in effect at the time such reference becomes
operative.
"Company" shall mean First Union Corporation, a North Carolina
corporation.
"Collateral" shall mean and include all of the Pledged
Securities, together with all proceeds thereof and all cash, additional
securities, and other property at any time and from time to time receivable or
otherwise distributed in respect of or in exchange for any or all of such
Pledged Securities.
"Collateral Value" shall mean, as of any date of
determination, the Per Share Price multiplied by the number of shares of
Pledged Securities in which Bank has a perfected first priority security
interest hereunder.
"Commission" shall mean the Securities and Exchange
Commission, or any other Federal agency then administering the Securities Act.
"Event of Default" shall mean any of the events listed in
Section 5(a) of this Agreement.
"Financing Agreements" shall mean this Agreement, the Note and
the other documents, agreements and certificates executed or delivered in
connection herewith.
"Note" shall mean the promissory note, dated of even date
herewith, from Pledgor to Bank in the original principal amount of $18,100,000,
as amended, modified, supplemented, restated or renewed from time to time.
"Per Share Price" shall mean as of any date of determination
(i) the per share closing price of the Company's common stock as of the close
of trading on the national stock exchange on which such stock is then traded on
the business day immediately preceding such
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determination date or (ii) if such stock is not so listed for trading on such a
national stock exchange, the per share price of the Company's common stock as
determined by Bank in its reasonable discretion.
"Permitted Liens" shall mean those liens and encumbrances (a)
for taxes not yet due or being properly contested; (b) resulting from deposits
made in the ordinary course of Pledgor's business in connection with xxxxxxx'x
compensation, unemployment insurance, social security and other like laws, but
only if the payment thereof is not at the time required or such claims are
being properly contested; and (c) from attachments, judgments and other similar
non-tax liens arising in connection with court proceedings, but only if and for
so long as the execution or other enforcement of such liens is and continues to
be effectively stayed and bonded on appeal in a manner satisfactory to Bank for
the full amount thereof and the validity and amount of the claims secured
thereby are being properly contested.
"Person" shall mean any individual, corporation, partnership,
limited liability company, association, trust or unincorporated organization,
or a government or any agency or political subdivision thereof.
"Plan" shall mean the Second Amended and Restated Plan of
Reorganization of The Enstar Group, Inc., filed December 5, 1991 and effective
as of June 1, 1992, as modified, filed with the U.S. Bankruptcy Court for the
Middle District of Alabama (In Re: The Enstar Group, Inc., Case No. 91-02618).
"Pledged Securities" shall mean and include (i)(a) the 353,602
shares of common stock of the Company now owned by Pledgor (as described in
Exhibit A hereto) as of the date hereof and (b) any shares of common stock of
the Company issued in exchange therefor or constituting dividends thereon, and
(ii) any and all of the issued and outstanding shares of common stock of the
Company (other than those shares described in clause (i)(b) of this definition)
hereafter pledged by the Pledgor to the Bank and in which the Bank obtains a
perfected first priority security interest, including, without limitation, all
shares of common stock of the Company pledged and delivered by Pledgor to the
Bank pursuant to Section 3(n) hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same may from time to time be in effect.
"Securities Laws" shall mean the Securities Act, the
Securities Exchange Act of 1934, as amended, or any similar Federal statute,
and the rules and regulations of the Commission thereunder, together with any
and all applicable state blue sky laws, all as the same may from time to time
be in effect.
"Solvent" shall mean, as to Pledgor, that Pledgor (a) has
capital sufficient to carry on its business and transactions and all business
and transactions in which it is about to
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engage, (b) is able to pay its debts as they mature and (c) owns property whose
fair saleable value is greater than the amount required to pay its indebtedness
and liabilities.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Note.
2. PLEDGE. To induce Bank to make the loan evidenced by the
Note, and in consideration thereof and of any loans, advances or financial
accommodations heretofore or hereafter granted by Bank to or for Pledgor's
account, whether pursuant to the Note or otherwise, all of which will inure to
Pledgor's direct benefit, Pledgor hereby pledges, conveys, hypothecates,
mortgages, assigns, sets over, delivers to Bank and grants to Bank a security
interest in all of the Collateral now or hereafter owned by Pledgor as security
for the payment and performance when due of the Obligations.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING
COLLATERAL. Pledgor hereby represents, warrants and covenants to and with Bank
that:
(a) DUE AUTHORIZATION, ETC. The execution, delivery and
performance of this Agreement, the creation of the liens and security interests
and the delivery to Bank of the certificates evidencing the Pledged Securities
provided for hereunder are within Pledgor's corporate power, have been duly
authorized by all necessary corporate action, are not in contravention of any
provision of Pledgor's articles of incorporation or bylaws or of any law or of
any agreement or indenture by which Pledgor is bound, and do not require the
consent or approval of any government body, agency, authority or other Person,
which has not been obtained and a copy thereof furnished to Bank;
(b) VALID AND BINDING OBLIGATION. This Agreement
constitutes Pledgor's valid and legally binding obligation, enforceable in
accordance with its terms, as such enforceability may be limited by bankruptcy,
insolvency, moratorium and other similar laws affecting creditors' rights
generally and by general principles of equity (whether applied at law or in
equity);
(c) TITLE TO COLLATERAL. Pledgor is the legal and
equitable owner of, and has the complete and unconditional authority to pledge,
the Collateral, and holds the same free and clear of all liens, charges,
encumbrances and security interests except those in favor of Bank granted
hereunder and Permitted Liens, and will defend its title thereto against the
claims of all Persons whomsoever;
(d) COLLATERAL; RESTRICTIONS ON SALE. All of the issued
and outstanding shares of capital stock of the Company owned by Pledgor are
evidenced by the certificates described on Exhibit A attached hereto; except as
described in Exhibit A, none of the Pledged Securities are subject to any
restriction on trading or sale, whether pursuant to any agreement to which
Pledgor is a party, under Securities Laws or otherwise;
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(e) PLAN. Pledgor has not defaulted under any term,
condition or obligation to which it is subject under the Plan; without limiting
the generality of the foregoing, all payments and distributions required to be
made by Pledgor under the Plan have been when and as due;
(f) SOLVENCY. Giving effect to the execution and
delivery of the Loan Documents and the making of the Loan, Pledgor is Solvent;
(g) PLEDGE OF PLEDGED SECURITIES. Upon execution and
delivery of this Agreement, Pledgor shall deliver to Bank certificates
evidencing all Pledged Securities included in the Collateral, accompanied by
executed stock powers in blank and by irrevocable proxies with respect to the
Pledged Securities in favor of Bank, the rights of Bank under which shall be
exercisable only upon the occurrence of an Event of Default and in accordance
with the terms of this Agreement;
(h) PLEDGE OF ADDITIONAL SECURITIES AND PROPERTY. Except
as provided in Section 4(a) hereof, Pledgor will cause any additional Pledged
Securities or property issued to or received by it with respect to any of the
Collateral, and any certificates evidencing the Company's common stock issued
in exchange for such Pledged Securities, whether for value paid by it or
otherwise, to be forthwith deposited and pledged with Bank, in each case
accompanied by instruments of assignment duly executed in blank by Pledgor
substantially the same as those required by subsection (g);
(i) NO LIENS OR SECURITY INTERESTS. Pledgor will not
permit any lien, claim, charge, security interest or encumbrance to exist with
respect to the Collateral, other than those in favor of Bank with respect to
the Collateral and Permitted Liens;
(j) DISPOSITION OF COLLATERAL OR RETAINED SECURITIES.
Pledgor will not sell, exchange, hypothecate, pledge, assign, convey, mortgage
or abandon any Collateral;
(k) PAYMENT OF TAXES AND CHARGES. Pledgor will pay all
taxes, assessments and charges levied, assessed or imposed upon the Collateral
before the same become delinquent or become liens upon any of the Collateral
except where the same may be contested in good faith by appropriate proceedings
and as to which adequate reserves have been provided;
(l) BANK'S RIGHT TO TAKE ACTION. In the event that
Pledgor fails or refuses to perform any of its obligations set forth herein,
Bank shall have the right, without obligation, to discharge the same, and any
sums paid by Bank, or the cost thereof, including without limitation,
reasonable attorneys' fees actually incurred by Bank, shall constitute secured
Obligations and bear interest until paid;
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(m) NO OBLIGATION BY BANK. Pledgor acknowledges and
agrees that nothing contained herein shall obligate Bank or impose a duty upon
Bank to assume any duties or obligations of Pledgor with respect to any of the
Collateral;
(n) COLLATERAL VALUE; RELEASE OF PLEDGED STOCK. (i)
Pledgor covenants and agrees that on the date hereof the outstanding principal
amount of the Loan shall be no greater than 75% of the Collateral Value; (ii)
if at any time after the date hereof, and from time to time after the date
hereof, the outstanding principal amount of the Loan exceeds 80% of the
Collateral Value, the Pledgor shall, within five (5) days of such date, either
repay the principal of the Loan in such amount, or deliver to Bank additional
shares of common stock of the Company constituting Pledged Securities with such
Value, so that the outstanding principal balance of the Loan after such
repayment or delivery of Pledged Securities does not exceed 80% of the
Collateral Value; (iii) if at any time after the date hereof, and from time to
time after the date hereof, the outstanding principal amount of the Loan is
less than 60% of the Collateral Value, the Bank shall, within ten (10) days of
receipt of a written request from Pledgor, release to Pledgor such number of
the Pledged Securities such that immediately after such release the outstanding
principal amount of the Loan is at least 74%, but not in excess of 75%, of the
Collateral Value; and (iv) if at any time and from time to time after the Bank
shall have released any of the Pledged Securities pursuant to clause (iii)
above the outstanding principal amount of the Loan exceeds 80% of the
Collateral Value, Pledgor shall take the actions described in clause (ii) above
such that the outstanding principal balance of the Loan after such repayment
of the Loan or delivery of additional shares of common stock constituting
Pledged Securities as described in clause (ii) does not exceed 80% of the
Collateral Value;
(O) FINANCIAL STATEMENTS. Pledgor shall furnish or cause
to be furnished to Bank:
(i) As soon as available and in any event within 10 days
of the filing thereof, copies of any reports or filings (including Borrower's
Form 10-Q and Form 10-K) required to be made with the Commission;
(ii) Together with the Form 10-Q and Form 10-K referred to
in clause (i) above, a certificate of the chief executive officer and chief
financial officer of Pledgor certifying that, to the best of their knowledge,
no Event of Default has occurred and is continuing or, if an Event of Default
has occurred and is continuing, a statement as to the nature thereof and the
action which is proposed to be taken with respect thereto;
(iii) As soon as available and in any event within 10 days
of the filing thereof, copies of any material reports or filings made with the
United States Bankruptcy Court with jurisdiction over the Plan;
(iv) As soon as available and in any event within 10 days
of incurring the same, notice of any borrowing of $1,000,000 or more or any
guaranty of any Person's
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borrowing of $1,000,000 or more, and promptly upon request of the Bank for the
same, the loan documents evidencing any such loan (and guaranty, if
applicable);
(vii) Promptly upon the request of Bank, such other
information respecting the business, property, assets, operations or condition,
financial or otherwise, of Pledgor as Bank may from time to time reasonably
request.
4. DIVIDENDS; ETC.
(a) RIGHT TO RECEIVE DIVIDENDS, ETC. For so long as no
Event of Default exists hereunder, Pledgor shall have the right to receive cash
dividends declared and paid by the Company with respect to the Collateral. Any
and all stock or liquidating dividends, other distributions in property,
returns of capital or other distributions made on or in respect of Collateral,
whether resulting from a subdivision, combination or reclassification of the
outstanding capital stock of the Company, received in exchange for the
Collateral or any part thereof or received as a result of any merger,
consolidation, acquisition or other exchange of assets to which the Company may
be a party or otherwise, shall be and become part of the Collateral pledged
hereunder and, if received by Pledgor, shall forthwith be delivered to Bank, to
be held subject to the terms of this Agreement.
(b) POSSESSION OF THE COLLATERAL, ETC. Bank may hold any
of the Collateral, endorsed or assigned in blank, and may deliver any of the
Collateral to the Company or its stock transfer agent for the purpose of making
denominational exchanges or registrations or transfers in accordance with this
Agreement, including, without limitation, Section 3(n) hereof.
(c) TERMINATION OF RIGHT TO RECEIVE DIVIDENDS. Upon the
occurrence of any Event of Default, all of Pledgor's rights to receive any cash
dividends pursuant to Section 4(a) hereof shall cease, and all such rights
shall thereupon become vested in Bank, who shall have the sole and exclusive
right to receive and retain the dividends which Pledgor would otherwise be
authorized to receive and retain pursuant to Section 4(a) hereof. In such
event, Pledgor shall pay over to Bank any dividends received by Pledgor with
respect to the Collateral and any and all money and other property paid over to
or received by Bank, pursuant to the provisions of this Section 4(c) shall be
retained by Bank as Collateral hereunder and shall be applied in accordance
with the provisions hereof.
5. EVENTS OF DEFAULT; REMEDIES.
(a) DEFAULT. Each of the following shall constitute an
Event of Default hereunder:
(i) if there shall occur any "Event of
Default" under the Note, as such term is defined therein;
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(ii) if any of the Collateral shall be
attached or levied upon or seized in any legal proceedings, or held by
virtue of any lien or distress (and notwithstanding anything in the
Note to the contrary, no cure period shall be applicable to such
default, but Permitted Liens that do not have priority over the Bank's
security interest in the Collateral shall not be deemed an Event of
Default hereunder);
(iii) if a final order or judgment is
entered by the United States Bankruptcy Court with jurisdiction over
the Plan that Pledgor shall have failed to comply with the Plan.
(b) BANK'S RIGHTS AND REMEDIES. Upon the occurrence of
an Event of Default and during the continuance thereof:
(i) Bank shall thereupon have, in
addition to all other rights provided herein and in the Note and the
other Financing Agreements, the rights and remedies of a secured party
under the Uniform Commercial Code of the State of Georgia or other
applicable law and further, Bank may, without demand and without
advertisement, notice or legal process of any kind (except as may be
required by law), all of which Pledgor waives, at any time or times
(A) apply any cash dividends received by Bank pursuant to Section 4(c)
hereof to the Obligations and (B) if following such application there
remains outstanding any of the Obligations, sell the remaining
Collateral, or any part thereof, at public or private sale or at any
broker's board or on any securities exchange, for cash, upon credit or
for future delivery as Bank shall deem appropriate. Bank shall be
authorized at any such sale (if, on the advice of counsel, it deems it
advisable to do so) to restrict the prospective bidders, or purchasers
to Persons who will represent and agree that they are purchasing the
Collateral for their own account for investment and not with a view to
the distribution or resale thereof, and upon consummation of any such
sale Bank shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely
free from any claim or right on Pledgor's part, and Pledgor hereby
waives (to the extent permitted by law) all rights of redemption, stay
and/or appraisal which Pledgor now has or may have at any time in the
future under any rule of law or statute now existing or hereafter
enacted. Further, Bank shall have the right to transfer the Pledged
Securities to itself and to exercise its rights to vote under the
irrevocable proxies granted to it pursuant to Section 3(g) hereof.
(ii) Bank agrees to give written notice to Pledgor
in the manner specified in Section 9(1) hereof not less than ten (10)
days prior to the date of the disposition of the Collateral subject to
the security interest created herein at any such public sale or sale
at any broker's board or on any such
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securities exchange, or prior to the date after which private sale or
any other disposition of said Collateral will be made, and Pledgor
agrees that (A) such notice, if given in such manner, shall constitute
reasonable notice, but notice given in any other reasonable manner or
at any other reasonable time shall be sufficient; and (B) the proceeds
of any such sale or disposition shall be applied first to the
satisfaction of Bank's reasonable attorneys' fees, legal expenses, and
other costs and expenses actually incurred in connection with the
taking, retaking, holding, preparing for sale, and selling of the
Collateral, and second to the payment (in whatever order Bank elects)
of the Obligations. After the application of all such proceeds, Bank
will return any excess to Pledgor and Pledgor shall remain liable for
any deficiency.
6. POWER OF ATTORNEY. Pledgor appoints Bank, or any other Person
whom Bank may designate, as Pledgor's attorney, with power to endorse Pledgor's
name on any checks, notes, acceptances, money orders, drafts or other form of
payment or security that may come into Bank's possession and to do all things
necessary to carry out this Agreement. Pledgor ratifies and approves all acts
of such attorney. Neither Bank nor any other Person designated by Bank as
attorney hereunder will be liable for any acts or omissions except in the case
of wilful misconduct or gross negligence on the part of Bank, nor for any
errors of judgment or mistakes of fact or law. This power, coupled with an
interest, is irrevocable until the payment in full of the Note pursuant to the
terms thereof and the satisfaction in full of the Obligations.
7. TERMINATION OF AGREEMENT. This Agreement shall continue in
full force and effect until the repayment in full of the Note pursuant to the
terms thereof and the satisfaction in full of the Obligations. Upon
termination of this Agreement, Bank shall surrender to Pledgor or other Person
legally entitled thereto, without recourse or warranty, all certificates
evidencing and stock powers in respect of the securities included in the
Collateral which are in the possession of Bank and have not been disposed of
pursuant to Section 5(b) hereof.
8. WAIVERS; AMENDMENTS; SUCCESSORS AND ASSIGNS.
(a) WAIVER OF PRESENTMENT AND NOTICE. Pledgor waives
presentment and protest of any instrument and notice thereof, notice of default
and all other notices to which Pledgor might otherwise be entitled, except as
otherwise specifically provided herein.
(b) WAIVER OF FAILURE OR DELAY. Failure by Bank to
exercise any right, remedy or option under this Agreement or in any other
agreement between the parties hereto, or delay by Bank in exercising the same,
will not operate as a waiver.
(c) WRITTEN WAIVERS, ETC. No waiver by Bank will be
effective unless it is in a writing signed by Bank, and then only to the extent
specifically stated, and no waiver by Bank on any occasion shall affect or
diminish Bank's right thereafter to require strict performance by Pledgor with
any provision of this Agreement.
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(d) REMEDIES CUMULATIVE. Bank's rights and remedies
under this Agreement will be cumulative and not exclusive of any other right or
remedy which Bank may have.
(e) NO ORAL AMENDMENTS. This Agreement cannot be changed
or terminated orally.
(f) RIGHT TO ASSIGN. Bank shall have the right to assign
this Agreement and to transfer, assign or sell participations in its interests
hereunder from time to time in connection with any sale, assignment, transfer
or other disposition of the Note or any portion thereof, but Pledgor shall not
be permitted to assign this Agreement or any interest herein.
(g) SUCCESSORS AND ASSIGNS. All of the rights,
privileges, remedies and options given to Bank hereunder shall inure to the
benefit of its successors and assigns; and all the terms, conditions, promises,
covenants, provisions and warranties of this Agreement shall inure to the
benefit of and shall bind the representatives, successors and assigns of Bank
and Pledgor.
9. GENERAL PROVISIONS.
(a) FURTHER ACTS, ETC. Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as Bank may at any time request in
connection with the administration and enforcement of this Agreement or
relative to the Collateral or any part thereof or in order better to assure and
confirm unto Bank its rights and remedies hereunder, including, without
limitation, performing all acts and doing all things which Bank may request,
now or hereafter, to evidence, preserve or protect the creation, attachment or
perfection of the security interests herein granted to Bank.
(b) SECTION HEADINGS. Section headings used herein are
for convenience only and are not to affect the construction of or be taken into
consideration in interpreting this Agreement.
(c) SEVERABILITY. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
(d) REIMBURSEMENT OF EXPENSES. Pledgor shall reimburse
Bank for all of Bank's expenses (other than Bank's normal overhead) incurred in
connection with the development, preparation, execution, delivery,
modification, regular review and continuing administration of this Agreement,
including searches, filings, filing fees and taxes (other than taxes on the
Bank's income) and the fees and disbursements of Bank's attorneys (including,
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without limitation, counsel who are employees of Bank), and all costs and
expenses incurred by Bank (including reasonable attorney's fees and
disbursements actually incurred) to: (i) commence, defend or intervene in any
court proceeding relating to the Collateral or this Agreement; (ii) file a
petition, complaint, answer, motion or other pleadings, or to take any other
action in or with respect to any suit or proceeding (bankruptcy or otherwise)
relating to the Collateral or this Agreement; (iii) protect, collect, sell,
take possession of or liquidate any of the Collateral; (iv) attempt to enforce
any security interest in any of the Collateral or to seek any advice with
respect to such enforcement; and (v) enforce any of Bank's rights to collect
any of the Obligations.
(e) PAYMENT OF TAXES. If Pledgor fails to pay any taxes,
assessments or governmental charges levied or assessed or imposed upon or with
respect to the Collateral, or otherwise fails to pay any amount necessary for
the protection and preservation of the Collateral securing the Obligations,
Bank may (unless Pledgor is properly contesting the same) pay the same at
Bank's option, together with interest and penalty, and the amounts so paid
shall be added to the Obligations, bearing interest until paid at the highest
rate for the Obligations specified in the Note, and be secured by the
Collateral.
(f) CHOICE OF LAW. This Agreement shall be deemed to be
a contract made under the laws of the State of Georgia for all purposes, and
the validity of this Agreement and of all transactions provided for herein
shall be governed by, interpreted and construed under, and in accordance with,
the internal laws (and not the law of conflicts) of the State of Georgia.
(g) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Pledgor
covenants, warrants and represents to Bank that all of Pledgor's
representations and warranties contained in this Agreement shall be true at the
time of Pledgor's execution of this Agreement, shall survive the execution,
delivery and acceptance thereof by the parties hereto and the closing of the
transactions described herein or related hereto, and (except to the extent that
they shall be untrue solely as a result of transactions permitted by this
Agreement or the Note or otherwise consented to by Bank) shall be true from the
time of Pledgor's execution of this Agreement until the termination of this
Agreement as provided in Section 7 hereof.
(h) SURVIVAL OF RIGHTS, DUTIES, ETC. Pledgor's
representations and warranties and any indemnity, expense or fee reimbursement
obligations hereunder and under the other Loan Documents shall survive the
repayment of the Loan and the termination of this Agreement and the other Loan
Documents; provided, however, any claim by Bank for any breach of any such
representation or warranty or for payment under any such indemnity, expense or
fee reimbursement obligation must be brought within 180 days of the repayment
of the Loan and the termination of this Agreement and the other Loan Documents.
(i) BANK'S RIGHT TO TAKE ACTION WITH RESPECT TO
COLLATERAL. As between Bank and Pledgor, Bank may, in its sole discretion, (i)
exchange, enforce, waive or release any security or portion of the Collateral,
(ii) apply such Collateral or any proceeds of the Collateral and direct the
order or manner of sale thereof as Bank may, from time to time, determine, and
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(iii) settle, compromise, collect or otherwise liquidate any such Collateral
for the Obligations in any manner following the occurrence of an Event of
Default and during the continuance thereof without affecting or impairing
Bank's right to take any other further action with respect to any security for
the Obligations or any part thereof.
(j) PAYMENTS. Bank shall have the continuing and
exclusive right to apply or reverse and reapply any and all payments to any
portion of the Obligations as provided in the Note. To the extent that Pledgor
makes a payment or payments to Bank or Bank receives any payment or proceeds of
the Collateral for Pledgor's account, which payment or proceeds or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or proceeds received, the
Obligations or part thereof intended to be satisfied shall be revived and
continue in full force and effect, as if such payment or proceeds had not been
received by such Bank.
(k) LEGAL REMEDY INADEQUATE. Pledgor recognizes that, in
the event Pledgor fails to perform, observe or discharge any of its obligations
or liabilities under this Agreement, any remedy of law may prove to be
inadequate relief to Bank; therefore, Pledgor agrees that Bank, if Bank so
requests, shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages.
(l) NOTICES. All notices and other communications from
either party to the others hereunder shall be given in accordance with Section
5.4 of the Note.
(m) INDEMNITY. Pledgor agrees to indemnify Bank from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, reasonable fees and
disbursements of counsel actually incurred) which may be imposed on, incurred
by, or asserted against Bank in any litigation, proceeding or investigation,
including, without limitation, any of the foregoing brought under any federal
or state securities laws, which is threatened, instituted or conducted by any
government agency or instrumentality or any other Person with respect to any
aspect of, or any transaction contemplated by, or referred to in, or any matter
related to, this Agreement, whether or not Bank is a party thereto except to
the extent that any of the foregoing arises out of the wilful misconduct or
gross negligence of the Bank.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE ENSTAR GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: President
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Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
FIRST UNION NATIONAL BANK OF GEORGIA
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Assistant Secretary
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Address: 000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
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EXHIBIT A
TO STOCK PLEDGE AGREEMENT
CERTIFICATES EVIDENCING PLEDGED SECURITIES
Number of Shares Certificate Number(s)
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71,000 FS 344496
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282,602 FS 344497
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