PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Agreement") is made as of July
1, 2000, by and between The Xxxxx Group, Inc., a Tennessee corporation
("Dixie"), the Xxxxxx X. Xxxxx and Xxxxxx Xxxxx Charitable Remainder Unitrust
and the Xxxxxx X. Xxxxx Loving Trust (collectively, the "Trusts") and Xxxxxx X.
Xxxxx ("Xxxxx"; together with the Trusts, collectively, the "Secured Party").
W I T N E S S E T H:
WHEREAS, Xxxxx has purchased from the Trusts all of their shares of the Class
A Common Stock (the "Fabrica Stock") of Fabrica International, a California
corporation ("Fabrica"), in accordance with that certain Stock Purchase
Agreement dated as of July 1, 2000 by and among Xxxxx, the Trusts and Xxxxx X.
Xxxxxxxx (the "Fabrica Stock Purchase Agreement");
WHEREAS, Xxxxx has purchased from Xxxxx Party all of his shares of Common
Stock (the "ChromaTech Stock"; together with the Fabrica Stock, the "Stock") of
Chroma Technologies, Inc., a California corporation ("ChromaTech"), in
accordance with that certain Stock Purchase Agreement dated as of July 1, 2000
by and among Xxxxx, the Secured Party and Xxxxxx X. Xxxxx (the "Stock Purchase
Agreement");
WHEREAS, Xxxxx is obligated to make a Contingent Sales Payment (as defined in
the Fabrica Stock Purchase Agreement) to the Trusts under the Fabrica Stock
Purchase Agreement in the event the Sales Contingency is satisfied under the
Fabrica Stock Purchase Agreement; and
WHEREAS, if the Purchase Price Adjustment (as defined in the ChromaTech Stock
Purchase Agreement) is a positive amount, Xxxxx is obligated to pay the
Purchase Price Adjustment to Xxxxx under the ChromaTech Stock Purchase
Agreement on July 1, 2003; and
WHEREAS, Xxxxx desires to pledge to and grant a security interest in the Stock
to the Secured Party to secure the payment of the Contingent Sales Payment in
the event the Sales Contingency is satisfied and to secure the payment of the
Purchase Price Adjustment in the event the Purchase Price Adjustment is a
positive amount (such payments, collectively, the "Obligations");
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Xxxxx hereby agrees with the Secured Party as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to them in the Fabrica Stock Purchase Agreement.
2. Pledge. As collateral security for the prompt payment and performance in
full when due, if ever, of the Obligations, Xxxxx hereby hypothecates, pledges
and assigns and transfers to the Secured Party, and grants to the Secured
Party, a security interest in all of Dixie's
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right, title and interest in, to and under, or as holder of, the following
property, whether now owned or hereafter acquired (all being collectively
referred to herein as the "Collateral"):
(a) the Stock, together with the certificate or certificates evidencing the
same;
(b) all securities, monies or property representing a distribution in respect
of the Stock (a "Distribution"), or return of capital upon or in respect of the
Stock, or resulting from a revision, reclassification or other like change of
the Stock or otherwise received in exchange therefor by merger or otherwise,
any subscription, warrants, rights or options issued to Xxxxx, or otherwise in
respect of, the Stock and any certificates, accounts, chattel paper,
instruments, general intangibles, cash, books, records, notices and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for the Stock or any Distribution; provided, however,
that so long as no Event of Default has occurred and is continuing, all sums
or property paid, declared or distributed with respect to the Stock, including
all dividends declared with respect to the Stock, shall be the property of
Xxxxx and shall not be subject to the terms of this Agreement, and the Secured
Party shall have no security interest therein; and
(c) all proceeds of the foregoing.
3. Voting Rights. So long as no Event of Default has occurred and is
continuing, Xxxxx shall be entitled to vote the Stock and shall be entitled to
all rights, provisions and options of ownership with respect thereto, except
for the right to encumber, to take possession or to transfer ownership of said
Stock or proceeds thereof.
4. Default by Xxxxx. The occurrence of any one or more of the following
events, acts or occurrences shall, at the option of the Secured Party,
constitute an "Event of Default" under this Agreement:
(a) Xxxxx shall fail to pay the Contingent Sales Payment when such amount is
due and such failure shall continue for five (5) or more business days
following written notice thereof from the Secured Party to Xxxxx;
(b) Xxxxx shall commence a voluntary case concerning itself under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to Xxxxx (each, a "Bankruptcy
Law"); an involuntary case is commenced against Xxxxx under a Bankruptcy Law
which is not controverted by Xxxxx within 30 days, or is not dismissed within
90 days, after the commencement of the case; a custodian, receiver or
liquidator is appointed for, or takes charge of, all or substantially all of
the property of Xxxxx; Xxxxx commences any other proceeding under any
Bankruptcy Law, or there is commenced against Xxxxx any such proceeding which
remains undismissed for a period of 90 days; Xxxxx is adjudicated insolvent or
bankrupt; any order of relief or other order approving any such case or
proceeding is entered; Xxxxx suffers any appointment of any custodian, receiver
or liquidator or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 90 days; or Xxxxx makes a
general assignment for the benefit of creditors; or
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(c) Xxxxx shall materially breach any covenant contained in this Agreement and
such breach shall continue for five (5) or more business days following written
notice thereof from the Secured Party to Xxxxx. Notwithstanding anything to
the contrary contained herein, the parties hereto agree that the failure of
Xxxxx to pay the Purchase Price Adjustment if and when due shall not constitute
a breach of a covenant under this Agreement.
5. Rights and Duties of the Secured Party. The Secured Party shall have all
the rights and duties, subject to Section 13, with respect to the Collateral as
a secured party has with respect to collateral under the California Uniform
Commercial Code (the "UCC"), and the Secured Party, in exercising or observing
such rights and duties, shall act in accordance therewith. Notwithstanding
anything contained herein or in the UCC to the contrary, the Secured Party
shall have all rights with respect to the Collateral as collateral upon the
occurrence of an Event of Default, including, without limitation, the retention
of the Collateral and/or the right to all proceeds upon foreclosure of the
Collateral by the Secured Party. Without limiting the foregoing, upon the
occurrence of an Event of Default the Secured Party may elect to retain the
Collateral without effecting a sale thereof, upon which election all of Dixie's
right, title and interest in and to the Collateral shall automatically vest in
the Secured Party. If upon the occurrence of an Event of Default the Secured
Party determines to sell any of the Collateral, Xxxxx shall do all things that
are necessary or advisable or that the Secured Party may reasonably request to
cause such sale of such Collateral to be exempt from registration under the
Securities Act of 1933, as amended, and under state securities laws.
6. No Disposition, Etc. Without the prior written consent of the Secured
Party, Xxxxx agrees that Xxxxx will not sell, assign, transfer, exchange,
convert, or otherwise dispose of, or grant any option with respect to, any of
the Collateral, nor will Xxxxx create, incur or permit to exist any Lien (as
hereinafter defined) with respect to any of the Collateral, except for the Lien
provided for by this Agreement. Without the prior written consent of the
Secured Party, Xxxxx agrees that Xxxxx will not vote to enable any Person or
any agent or representative of any Person, to, and will not otherwise permit
any Person, or any agent or representative of any Person, to, issue any stock
or other securities of any nature in addition to or in exchange or substitution
for the Stock.
7. Termination of Security Interest. The Secured Party's security interest in
the Collateral shall terminate upon the earlier of (i) the date of Dixie's
payment and performance in full of the Contingent Sales Payment or (ii) July 1,
2003 if the Sales Contingency is not satisfied; provided, however, that if on
July 1, 2003 a dispute between Xxxxx and the Secured Party exists as to whether
the Sales Contingency has been satisfied, the Secured Party's security
interest in the Collateral shall continue and shall not terminate until such
dispute has been resolved in accordance with the terms of the Stock Purchase
Agreement whereupon (a) if the resolution of the dispute is that the Sales
Contingency has been satisfied, the Secured Party's security interest in the
Collateral shall terminate upon Dixie's payment and performance in full of the
Contingent Sales Payment or (b) if the resolution of the dispute is that the
Sales Contingency has not been satisfied, the Secured Party's security interest
in the Collateral shall immediately terminate. Upon termination of the
Secured Party's security interest under this Section 7, the Secured Party
shall promptly deliver the Collateral to Xxxxx, including all certificates or
other instruments evidencing the Collateral.
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8. Further Assurances. Xxxxx and the Secured Party agree that at any time and
from time to time upon the written request of the other, they will execute and
deliver such further documents and do such further acts and things as the
other party may reasonably request in order to effect the purposes of this
Agreement. Xxxxx agrees to execute a uniform commercial code financing
statement, as debtor, with Secured Party, as secured party, covering the
Collateral and to cause the same to be filed in the applicable filing office in
Tennessee and maintained as an effective financing statement.
9. Governing Law; Submission to Jurisdiction; Arbitration.
(a) This Agreement shall be governed by and construed in accordance with the
laws of the State of California, without regard to principles of conflict of
laws. The parties hereto hereby declare that it is their intention that this
Agreement shall be regarded as made under the laws of the State of California
and that the laws of said State shall be applied in interpreting its provisions
in all cases where legal interpretation shall be required.
(b) Any dispute between the parties concerning this Agreement shall be
submitted to binding arbitration before a single arbitrator in accordance with
the following provisions:
(i) If a dispute arises concerning this Agreement, the dispute shall be
resolved through binding and non-appealable arbitration pursuant to the
Commercial Arbitration Rules of the American Arbitration Association (the
"Rules"), except where the Rules conflict with the provisions of this Section
9(b), in which event the provisions of this Section 9(b) shall prevail. The
arbitration shall be before one (1) arbitrator selected by the parties, or if
the parties cannot agree upon a single arbitrator within thirty (30) days of a
party giving notice to the other of a proposed choice for an arbitrator, then
by a single arbitrator selected by the New York City office of the American
Arbitration Association, who shall be a person (i) who is admitted to practice
law in the State of New York, (ii) who is a partner in a law firm having at
least one hundred attorneys, and (iii) who is familiar with the terms of stock
pledges entered into in the context of acquisitions. Any arbitrator so
appointed shall be neutral and subject to disqualification for the reasons
specified in Section 19 of the Rules.
(ii) Unless the arbitrator decides to the contrary, each party shall pay the
fees of his or its own attorneys, expenses of witnesses and all other expenses
connected with the preparation and presentation of such party's case. The cost
of the arbitration, including the cost of the record or transcripts thereof,
if any, administrative fees, and all other fees involved, shall be shared
equally, unless the arbitrators otherwise direct.
(iii) The parties agree to request that the arbitrator appointed pursuant to
the procedure agreed upon above shall, as soon as reasonably practicable after
his or her appointment, and after consultation with the parties, set an
arbitration date of no later than thirty (30) days after his or her
appointment. If that arbitrator is unable to conduct the arbitration during
such 30-day period then the parties shall select a new arbitrator in accordance
with Section 9(b)(i).
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(iv) The arbitration shall be conducted pursuant to the Rules, as then in
effect. Without limitation of the arbitrator's general authority, the
arbitrator shall have the right to order reasonable discovery in accordance
with the California Rules of Civil Procedure. Conformity to the legal rules
of evidence shall not be required in the arbitration. At any oral hearing of
evidence in connection with the arbitration, each party thereto or its legal
counsel shall have the right to examine its witnesses and to cross-examine the
witnesses of any opposing party. No evidence of any witness shall be presented
in written form unless the opposing party shall have the opportunity to
cross-examine such witness, except as the parties to the dispute otherwise
agree in writing or except under extraordinary circumstances where the
interests of justice require a different procedure.
(v) The decision of the arbitrator shall be binding upon all parties and no
appeal may be taken therefrom; provided, however, that no decision by such
arbitrator shall include the award of punitive damages. The decision of the
arbitrator shall be enforced and honored by the parties hereto without the
necessity of confirmation by a court. The parties hereby waive, to the extent
permitted by law, any rights to appeal or to review of any such decision by any
court or tribunal.
(vi) This arbitration shall be conducted in New York, New York. In the event
a party desires to obtain judicial confirmation of an arbitration award, the
parties consent to the exclusive jurisdiction of the appropriate state court in
New York, New York for the entry and enforcement of a judgment upon any
arbitration award rendered in connection with any state law, and of the United
States District Court for the Southern District of New York, for the entry and
enforcement of judgment upon any arbitration award rendered in connection with
any federal law, and the parties agree to both subject matter and in personam
jurisdiction for those purposes.
(vii) Notwithstanding any provision of this Section 9(b), the requirement to
arbitrate disputes under this Section shall not apply to any application for
interim injunctive or other equitable relief from any court of competent
jurisdiction with respect to this Agreement or any matter it contemplates.
10. Representations, Warranties and Covenants of Xxxxx. Xxxxx represents and
warrants that:
(a) it is the legal, record and beneficial owner of, and has good and
marketable title to, the Collateral, subject to no Lien (except the Lien
created by this Agreement);
(b) it has full power, authority and legal right to pledge all of such
Collateral pursuant to this Agreement and to execute and deliver and perform
each of its obligations under this Agreement;
(c) this Agreement is the legal, valid and binding obligation of Xxxxx,
enforceable against Xxxxx in accordance with the terms hereof;
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(d) this Agreement creates, as security for Dixie's performance of the
Obligations, a valid, enforceable and perfected Lien on the Collateral
(including, without limitation, the Stock), subject to no Lien in favor of any
other Person;
(e) to Dixie's knowledge, no consent, filing, recording or registration is
required to perfect the Lien purported to be created by this Agreement except
as provided in Section 9; and
(f) it will defend the Secured Party's right, title and Lien in and to the
Collateral against any and all claims and demands whatsoever.
As used in this Agreement, "Lien" shall mean any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the Uniform Commercial Code or any other similar recording or notice statute,
and any lease having substantially the same effect as any of the foregoing).
11. Time of the Essence; Exercise of Remedies. Time and exactitude of each of
the terms, obligations, covenants and conditions set forth in this Agreement
shall be of the essence. The rights, powers and remedies given to the Secured
Party pursuant to this Agreement shall be in addition to all rights, powers and
remedies given to the Secured Party by virtue of any statute, rule of law, or
any other agreement between Xxxxx and the Secured Party. Any forbearance or
failure or delay by the Secured Party in exercising any right, power or remedy
hereunder shall not preclude the further exercise thereof. Every right, power
and remedy of the Secured Party shall continue in full force and effect until
such right, power or remedy is specifically waived by an instrument in writing
executed by the Secured Party. The taking of any action by the Secured Party
shall not be deemed to be an election of the action, but rather the rights,
powers and remedies given to the Secured Party by this Agreement shall be
deemed cumulative, the one with the other, and not alternative.
12. Limits on the Secured Party's Duties. The Secured Party shall not be
liable for any failure to collect or realize upon any or all of the Collateral,
or for any delay in so doing, nor shall the Secured Party be under any duty to
take any action whatsoever with regard thereto. The Secured Party shall use
reasonable care in the custody and preservation of any Collateral in its
possession. The Secured Party shall have no duty to comply with any recording,
filing, or other legal requirements necessary to establish or maintain the
validity, priority or enforceability of, or the Secured Party's rights in or
to, any of the Collateral. Neither this Agreement nor the exercise by the
Secured Party of (or the failure to so exercise) any right, power, or remedy
conferred herein or by law shall be construed as relieving Xxxxx from full
liability for the Obligations and for any deficiency thereon.
13. Non-Judicial Remedies. THE SECURED PARTY MAY ENFORCE ANY
RIGHTS CONFERRED HEREUNDER WITHOUT PRIOR JUDICIAL PROCESS OR
JUDICIAL HEARING, AND XXXXX EXPRESSLY WAIVES, RENOUNCES AND
KNOWINGLY RELINQUISHES ANY AND ALL LEGAL RIGHTS WHICH MIGHT
OTHERWISE REQUIRE THE SECURED PARTY TO ENFORCE ITS RIGHTS BY
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JUDICIAL PROCESS. IN SO PROVIDING FOR NON-JUDICIAL REMEDIES, XXXXX
RECOGNIZES AND CONCEDES THAT SUCH REMEDIES ARE CONSISTENT WITH
AND RESPONSIVE TO COMMERCIAL NECESSITY, AND ARE THE RESULT OF
BARGAINING AT ARM'S LENGTH. NOTHING HEREIN IS INTENDED TO PREVENT
THE SECURED PARTY FROM RESORTING TO ARBITRATION IN ACCORDANCE
WITH THIS AGREEMENT.
14. Dixie's Waivers. Xxxxx hereby waives, to the extent permitted by
applicable law:
(a) any right to require the Secured Party to proceed against any person or to
proceed against or exhaust any other security held by the Secured Party at any
time or to pursue any other remedy in the Secured Party's power before
proceeding against Xxxxx or before proceeding against the Collateral;
(b) the defense of the statute of limitations in any action under this
Agreement or for the collection of any indebtedness or the performance of any
obligation hereby secured;
(c) any defense based upon any legal disability or other defense of Xxxxx, any
other guarantor or any other person or by reason of the cessation or limitation
of the liability of Xxxxx or any other guarantor from any cause other than
payment in full of the obligations under this Agreement;
(d) any defense based upon any lack of authority of the directors, officers,
agents or employees acting or purporting to act on behalf of Xxxxx;
(e) any defense based upon any failure by the Secured Party to obtain any
Collateral or failure by the Secured Party to perfect a Lien on any Collateral;
(f) presentment, demand, protest and notice of any kind;
(g) any defense based upon any failure of the Secured Party to give notice of
the disposition of any of the Collateral to any other person or entity or any
defect in any notice that may be given in connection with any such disposition;
(h) any defense based upon any failure of the Secured Party to comply with
applicable laws in connection with the disposition of the Collateral;
(i) any defense based upon any election by the Secured Party, in any bankruptcy
proceeding, of the application or non-application of Section 1111(b)(2) of the
United States Bankruptcy Code or any successor statute;
(j) any defense based upon any agreement or stipulation entered into by the
Secured Party with respect to the provision of adequate protection in any
bankruptcy proceeding;
(k) any defense based upon any borrowing or any grant of a security interest
under Section 364 of the United States Bankruptcy Code;
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(l) any defense based upon the avoidance of any security interest in favor of
the Secured Party for any reason; and
(m) any defense based upon any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution proceeding,
including any discharge of, or bar or stay against collecting, the Obligations.
15. Waiver of Claims. Except as otherwise provided in this Agreement, XXXXX
HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE
AND JUDICIAL HEARING IN CONNECTION WITH THE SECURED PARTY'S
TAKING POSSESSION OR THE SECURED PARTY'S DISPOSITION OF ANY OF
THE COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR
NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND
ANY SUCH RIGHT WHICH PLEDGOR WOULD OTHERWISE HAVE UNDER THE
CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE,
and Xxxxx hereby further waives, to the extent permitted by law (a) all damages
occasioned by such taking of possession except any damages which are the
direct result of the Secured Party's gross negligence or willful misconduct,
(b) all other requirements as to the time, place and terms of sale or other
requirements with respect to the enforcement of the Secured Party's rights
hereunder and (c) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law in
order to prevent or delay the enforcement of this Agreement or the absolute
sale of the Collateral or any portion thereof, and Xxxxx, for itself and all
who may claim under it, insofar as it or they now or hereafter lawfully may,
hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization
upon, any of the Collateral shall operate to divest all right, title, interest,
claim and demand, either at law or in equity, of Xxxxx therein and thereto,
and shall be a perpetual bar both at law and in equity against Xxxxx and
against any and all persons claiming or attempting to claim the Collateral so
sold, optioned or realized upon, or any part thereof, from, through and under
Xxxxx.
16. Discontinuance of Proceedings. In case the Secured Party shall have
instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale or otherwise, and such proceeding shall have
been discontinued or abandoned for any reason or shall have been determined
adversely to the Secured Party, then and in every such case Xxxxx and the
Secured Party shall be restored to their former positions and rights hereunder
with respect to the Collateral subject to the pledge created under this
Agreement, and all rights, remedies and powers of the Secured Party shall
continue as if no such proceeding had been instituted.
17. Indemnification.
(a) Xxxxx agrees to indemnify, reimburse and hold the Secured Party harmless
from any and all liabilities, obligations, losses, damages, penalties, claims,
actions, judgments, suits, costs, expenses or disbursements (including
reasonable attorneys' fees and expenses) (for the purposes of this Section, the
foregoing are collectively called "expenses") of whatsoever kind or nature
which may be imposed on, asserted against or incurred by the Secured Party in
any way
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relating to or arising out of the enforcement of any of the terms of or the
preservation of any rights under any this Agreement; provided that the Secured
Party shall not be indemnified pursuant to this Section for expenses to the
extent caused by the gross negligence or willful misconduct of the Secured
Party. Xxxxx agrees that upon written notice by the Secured Party of any
assertion that could give rise to an expense, Xxxxx shall assume full
responsibility for the defense thereof. The Secured Party agrees to use its
best efforts to promptly notify Xxxxx of any such assertion of which the
Secured Party has knowledge.
(b) Without limiting the application of Section 18(a), Xxxxx agrees to pay or
reimburse the Secured Party for any fees, costs and expenses incurred by the
Secured Party in order to create, perfect and/or preserve the Secured Party's
Lien on, and security interest in, the Collateral hereunder.
18. No Assignment. Neither this Agreement nor any rights, benefits or
obligations hereunder, may be assigned, directly, indirectly, voluntarily or by
operation of law, by any party to this Agreement.
19. Notices. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party; overnight
courier; registered or certified mail, return receipt requested, postage
prepaid; or facsimile transmission addressed as follows:
If to Secured Party:
Xxxxxx X. Xxxxx and Xxxxxx Xxxxx Charitable Remainder Unitrust
Xxxxxx X. Xxxxx Loving Trust
Xxxxxx X. Xxxxx
0 Xxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
with a copy to:
White & Case LLP
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx
Telecopier No.: (000) 000-0000
If to Dixie:
The Xxxxx Group, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: 000-000-0000
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with a copy to:
Xxxx, Xxxxxxx & Xxxxxxxx, P.C.
0000 XxxXxxxx Xxxx Xxxx.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Xx.
Telecopier No.: (000) 000-0000
or to such other address as either party shall have famished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
20. Severability. If any provision of this Agreement is found in binding
arbitration or by a court or other tribunal of competent jurisdiction to be
invalid or unenforceable, the attempt shall first be made to read the provision
in such a way as to make it valid and enforceable in light of the parties'
apparent intent as evidenced by this Agreement. If such reading is impossible,
the tribunal having jurisdiction may revise the provision in any reasonable
manner, to the extent necessary to make it binding and enforceable. If no such
revision is possible, the offending provision shall be deemed stricken from
the Agreement, and every other provision shall remain in full force and effect.
21. Waivers. The Secured Party's or Dixie's failure to insist upon strict
compliance with any provision hereof shall not be deemed to be a waiver of such
provision or any other provision thereof. Any waiver of any provision of this
Agreement shall be valid only if set forth in an instrument in writing signed
on behalf of the party making the waiver. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar) nor shall much waiver constitute a
continuing waiver unless otherwise expressly provided.
22. Entire Agreement; Modification. This Agreement and the Stock Purchase
Agreement contain the entire understanding of Xxxxx and Secured Party with
respect to the granting of any security interest in the Collateral to the
Secured Party. This Agreement may be modified only in a writing signed by
both parties.
23. Construction. The parties have participated collectively in negotiating
and drafting this Agreement. If a question concerning intent or interpretation
arises, no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of authorship. Any reference to any federal, state, local
or foreign statute or law shall be deemed also to refer to all related rules
and regulations unless the context requires otherwise.
24. Counterparts. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument.
In proving this Agreement in any proceeding, it shall not be necessary to
produce or account for more than one such counterpart signed by the party
against whom such enforcement is sought. Any signature delivered by a party by
facsimile transmission shall be deemed to be an original signature hereto.
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IN WITNESS WHEREOF, Xxxxx and the Secured Party have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
DIXIE:
THE XXXXX GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman & CEO
SECURED PARTY:
Xxxxxx X. Xxxxx and Xxxxxx Xxxxx
Chartiable Remainder Unitrust
/s/ Xxxxxx X. Xxxxx, Trustee
Xxxxxx X. Xxxxx, as Trustee
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, as Independent Special
Trustee
Xxxxxx X. Xxxxx Loving Trust
/s/ Xxxxxx X. Xxxxx, Trustee
Xxxxxx X. Xxxxx, as Trustee
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
