XXXXX FARGO BANK GENERAL PLEDGE AGREEMENT
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1. GRANT OF SECURITY INTEREST. For valuable consideration, the
undersigned CHOLESTECH CORPORATION, or any of them ("Debtor"), hereby
assigns, transfers to and pledges with XXXXX FARGO BANK, NATIONAL ASSOCIATION
("Bank"), and grants to Bank a security interest in, all money and property
this day delivered to and deposited with Bank, together with all other money
or property heretofore delivered or which shall hereafter be delivered to or
come into the possession, custody or control of Bank in any manner or for any
purpose whatsoever during the existence of this Agreement (collectively
called "Collateral"), and whether held in a general or special account or
deposit for safekeeping or otherwise, together with whatever is receivable or
received when any of the Collateral or proceeds thereof are sold, collected,
exchanged or otherwise disposed of, whether such disposition is voluntary or
involuntary, including without limitation, (a) all rights to payment,
including returned premiums, with respect to any insurance relating to any of
the foregoing, (b) all rights to payment with respect to any cause of action
affecting or relating to any of the foregoing, and (c) all stock rights,
rights to subscribe, stock splits, liquidating dividends, cash dividends,
dividends paid in stock, new securities or other property of any kind which
Debtor is or may hereafter be entitled to receive on account of any
securities pledged hereunder, including without limitation, stock received by
Debtor due to stock splits or dividends paid in stock or sums paid upon or in
respect of any securities pledged hereunder upon the liquidation or
dissolution of the issuer thereof (hereinafter called "Proceeds"), and in the
event that Debtor receives any such Proceeds, Debtor will hold the same in
trust on behalf of and for the benefit of Bank and will immediately deliver
all such Proceeds to Bank in the exact form received, with the endorsement of
Debtor if necessary and/or appropriate undated stock powers duly executed in
blank, to be held by Bank as a part of the Collateral, subject to all terms
hereof. Security interest limited to $3,000,000 principal plus interest.
2. OBLIGATIONS SECURED. The obligations secured hereby are the payment
and performance of: (a) all present and future indebtedness of Debtor to Bank;
(b) all obligations of Debtor and rights of Bank under this Agreement; and (c)
all present and future obligations of Debtor to Bank of other kinds. The word
"Indebtedness" is used herein in its most comprehensive sense and includes any
and all advances, debts, obligations and liabilities of Debtor, or any of them,
heretofore, now or hereafter made, incurred or created, whether voluntary or
involuntary and however arising, whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, and whether Debtor may
be liable individually or jointly, or whether recovery upon such indebtedness
may be or hereafter becomes unenforceable.
3. TERMINATION. This Agreement will terminate upon the performance of
all obligations of Debtor to Bank, including without limitation, the payment
of all indebtedness of Debtor to Bank, and the termination of all commitments
of Bank to extend credit to Debtor, existing at the time Bank receives
written notice from Debtor of the termination of this Agreement.
4. OBLIGATIONS OF BANK.
(a) Bank has no obligation to make any loans hereunder. Any money
received by Bank in respect of the Collateral may be deposited, at Bank's
option, into a non-interest bearing account over which Debtor shall have no
control, and the same shall, for all purposes, be deemed Collateral hereunder.
(b) Bank's obligation with respect to Collateral and Proceeds in its
possession shall be strictly limited to the duty to exercise reasonable care in
the custody and preservation of such Collateral and Proceeds, and such duty
shall not include any obligation to ascertain or to initiate any action with
respect to or to inform Debtor of maturity dates, conversion, call or exchange
rights, or offers to purchase the Collateral or Proceeds, or any similar
matters, notwithstanding Bank's knowledge of the same. Bank shall have no duty
to take any steps necessary to preserve the rights of Debtor against prior
parties, or to initiate any action to protect against the possibility of a
decline in the market value of the Collateral or Proceeds. Bank shall not be
obligated to take any action with respect to the Collateral or Proceeds
requested by Debtor unless such request is made in writing and Bank determines,
in its sole discretion, that the requested action would not unreasonably
jeopardize the value of the Collateral and Proceeds as security for the
indebtedness. Bank may at any time deliver the Collateral and Proceeds, or any
part thereof, to any Debtor, and the receipt thereof by any Debtor shall be a
complete and full acquittance for the Collateral and Proceeds so delivered, and
Bank shall thereafter be discharged from any liability or responsibility
therefor.
5. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to
Bank that: (a) Debtor is the owner and has possession or control of the
Collateral and Proceeds; (b) Debtor has the right to pledge the Collateral and
Proceeds; (c) all Collateral and Proceeds are genuine, free from liens, adverse
claims, setoffs, default, prepayment, defenses and conditions precedent of any
kind or character, except, the lien created hereby or as otherwise agreed to by
Bank, or heretofore disclosed by Debtor to Bank, in writing; (d) all statements
contained herein and, where applicable, in the Collateral are true and complete
in all material respects; (e) no financing statement covering any of the
Collateral or Proceeds, and naming any secured party other than Bank, is on file
in any public office; and (f) specifically with respect to Collateral and
Proceeds consisting of investment securities, instruments, chattel paper,
documents, contracts, insurance policies or any like property, (i) all persons
appearing to be obligated thereon have authority and capacity to contract and
are bound as they appear to be, and (ii) the same comply with applicable laws
concerning form, content and manner of preparation and execution.
6. COVENANTS OF DEBTOR.
(a) Debtor Agrees in general: (i) to pay indebtedness secured hereby when
due; (ii) to indemnify Bank against all losses, claims, demands, liabilities and
expenses of every kind caused by property subject hereto; (iii) to pay all
costs and expenses, including reasonable attorneys' fees, incurred by Bank in
the perfection and preservation of the Collateral or Bank's interest therein
and/or the realization, enforcement and exercise of Bank's rights, powers and
remedies hereunder; (iv) to permit Bank to exercise its powers; (v) to execute
and deliver such documents as Bank deems necessary to create, perfect and
continue the security interests contemplated hereby; and (vi) not to change its
chief place of business or the places where Debtor keeps any of the Collateral
or Debtor's records concerning the Collateral and Proceeds without first giving
Bank written notice of the address to which Debtor is moving same.
(b) Debtor agrees with regard to the Collateral and Proceeds, unless Bank
agrees otherwise in writing: (i) not to permit any lien on the Collateral or
Proceeds, except in favor of Bank; (ii) not to withdraw any funds from any
deposit account pledged to Bank hereunder; (iii) not to sell, hypothecate or
otherwise dispose of, nor permit the transfer by operation of law of, any of the
Collateral or Proceeds or any interest therein; (iv) to keep, in accordance with
generally accepted accounting principles, complete and accurate records
regarding all Collateral and Proceeds, and to permit Bank to inspect the same
and make copies thereof at any reasonable time: (v) if requested by Bank, to
receive and use reasonable diligence to collect Proceeds, in trust and as the
property of Bank, and to immediately endorse as appropriate and deliver such
Proceeds to Bank daily in the exact form in which they are received together
with a collection report in form satisfactory to Bank; (vi) not to commingle
Collateral or Proceeds, or collections thereunder, with other property; (vii) in
the event Bank elects to receive payments of Proceeds hereunder, to pay all
expenses incurred by Bank in connection therewith, including expenses of
accounting, correspondence, collection efforts, filing, recording, record
keeping and expenses incidental thereto; (viii) to provide any service and do
any other acts which may be necessary to keep all Collateral and Proceeds free
and clear of all defenses, rights of offset and counterclaims; and (ix) if the
Collateral or Proceeds consists of securities and so long as no Event of Default
exists, to vote said securities and to give consents, waivers and ratifications
with respect thereto, provided that no vote shall be cast or consent, waiver or
ratification given or action taken which would impair Bank's interest in the
Collateral and Proceeds or be inconsistent with or violate any provisions of
this Agreement.
7. POWERS OF BANK. Debtor appoints Bank its true attorney-in-fact to
perform any of the following powers, which are coupled with an interest, are
irrevocable until termination of this Agreement and may be exercised from time
to time by Bank's officers and employees, or any of them, whether or not Debtor
is in default: (a) to perform any obligation of Debtor hereunder in Debtor's
name or otherwise (b) to notify any person obligated on any security, instrument
or other document subject to this Agreement of Bank's rights hereunder, (c) to
collect by legal proceedings or otherwise all dividends, interest, principal or
other sums now or hereafter payable upon or on account of the Collateral or
Proceeds; (d) to enter into any extension, reorganization, deposit, merger or
consolidation agreement, or any other agreement relating to or affecting the
Collateral or Proceeds, and in connection therewith to deposit or surrender
control of the Collateral and Proceeds, to accept other property in exchange for
the Collateral and Proceeds, and to do and perform such acts and things as Bank
may deem proper, with any money or property received in exchange for the
Collateral or Proceeds, at Bank's option, to be applied to the indebtedness or
held by Bank under this Agreement; (e) to make any compromise or settlement Bank
deems desirable or proper in respect of the Collateral and Proceeds; (f) to
insure, process and preserve the Collateral and Proceeds; (g) to exercise all
rights, powers and remedies which Debtor would have, but for this Agreement,
with respect to all Collateral and Proceeds subject hereto: and (h) to do all
acts and things and execute all documents in the name of Debtor or otherwise,
deemed by Bank as necessary, proper and convenient in connection with the
preservation, perfection or enforcement of its rights hereunder. To effect the
purposes of this Agreement or otherwise upon instructions of Debtor, or any of
them, Bank may cause any Collateral and/or Proceeds to be transferred to Bank's
name or the name of Bank's nominee. If an Event of Default has occurred and is
continuing, any or all Collateral and/or Proceeds consisting of securities may
be registered, without notice, in the name of Bank or its nominee, and
thereafter Bank or its nominee may exercise, without notice, all voting and
corporate rights at any meeting of the shareholders of the issuer thereof, any
and all rights of conversion, exchange or subscription, or any other rights,
privileges or options pertaining to such Collateral and/or Proceeds, all as if
it were the absolute owner thereof. The foregoing shall include, without
limitation, the right of Bank or its nominee to exchange, at its discretion, any
and all Collateral and/or Proceeds upon the merger, consolidation,
reorganization, recapitalization or other readjustment of the issuer thereof, or
upon the exercise by the issuer thereof or Bank of any right, privilege or
option pertaining to any shares of the Collateral and/or Proceeds, and in
connection therewith, the right to deposit and deliver any and all of the
Collateral and/or Proceeds with any committee, depository, transfer agent,
registrar or other designated agency upon such terms and conditions as Bank may
determine. All of the foregoing rights, privileges or options may be exercised
without liability on the part of Bank or its nominee except to account for
property actually received by Bank, Bank shall have no duty to exercise any of
the foregoing, or any other rights, privileges or options with respect to the
Collateral or Proceeds and shall not be responsible for any failure to do so or
delay in so doing.
8. PAYMENT OF PREMIUMS, TAXES, CHARGES, LIENS AND ASSESSMENTS. Debtor
agrees to pay, prior to delinquency, all insurance premiums, taxes, charges,
liens and assessments against the Collateral and Proceeds, and upon the failure
of Debtor to do so, Bank at its option may pay any of them and shall be the sole
judge of the legality or validity thereof and the amount necessary to discharge
the same. Any such payments made by Bank shall be obligations of Debtor to
Bank, due and payable immediately upon demand, together with interest at a rate
determined in accordance with the provisions of Section 15 herein, and shall be
secured by the Collateral and Proceeds, subject to all terms and conditions of
this Agreement.
9. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" under this Agreement: (a) any default in the
payment or performance of any obligation, or any defined event of default, under
(i) any contract or instrument evidencing any indebtedness, or (ii) any other
agreement between any Debtor and Bank, including without limitation any loan
agreement, relating to or executed in connection with any indebtedness; (b) any
representation or warranty made by any Debtor herein shall prove to be incorrect
in any material respect when made; (c) any Debtor shall fail to observe or
perform any obligation or agreement contained
herein; (d) any attachment or like levy on any property of any Debtor; and (e)
Bank in good faith, believes any or all of the Collateral and/or Proceeds to be
in danger of misuse, dissipation, commingling, loss, theft, damage or
destruction, of otherwise in jeopardy or unsatisfactory in character or value.
10. REMEDIES. Upon the occurrence of any Event of Default, Bank shall
have the right to declare immediately due and payable all or any indebtedness
secured hereby and to terminate any commitments to make loans or otherwise
extend credit to Debtor. Bank shall have all other rights, powers, privileges
and remedies granted to a secured party upon default under the California
Uniform Commercial Code or otherwise provided by law, including without
limitation, the right to contact all persons obligated to Debtor on any
Collateral or Proceeds and to instruct such persons to deliver all Collateral
and/or Proceeds directly to Bank. All rights, powers, privileges and remedies
of Bank shall be cumulative. No delay, failure or discontinuance of Bank in
exercising any right, power, privilege or remedy hereunder shall affect or
operate as a waiver of such right, power, privilege or remedy; nor shall any
single or partial exercise of any such right, power, privilege or remedy
preclude, waive or otherwise affect any other or further exercise thereof or the
exercise of any other right, power, privilege or remedy. Any waiver, permit,
consent or approval of any kind by Bank of any default hereunder, or any such
waiver of any provisions or conditions hereof, must be in writing and shall be
effective only to the extent set forth in writing. It is agreed that public or
private sales, for cash or on credit, to a wholesaler or retailer or investor,
or user of property of the types subject to this Agreement, or public auction,
are all commercially reasonable since differences in the sales prices generally
realized in the different kinds of sales are ordinarily offset by the
differences in the costs and credit risks of such sales.
While an Event of Default exists: (a) Bank may, at any time and at Banks sole
option, liquidate any time deposits pledged to Bank hereunder, whether or not
said time deposits have matured and notwithstanding the fact that such
liquidation may give rise to penalties for early withdrawal of funds; (b) Debtor
will not dispose of any of the Collateral or Proceeds except on terms approved
by Bank: (c) Bank may appropriate the Collateral and apply all Proceeds toward
repayment of the indebtedness in such order of application as Bank may from time
to time elect; and (d) at Bank's request, Debtor will assemble and deliver all
Collateral and Proceeds, and books and records pertaining thereto, to Bank at a
reasonably convenient place designated by Bank. For any Collateral or Proceeds
consisting of securities, Bank shall have no obligation to delay a sale of any
portion thereof for the period of time necessary to permit the issuer thereof to
register such securities for public sale under any applicable state or Federal
law, even if the issuer thereof would agree to do so.
11. DISPOSITION OF COLLATERAL AND PROCEEDS. Upon the transfer of all or
any part of the Indebtedness, Bank may transfer all or any part of the
Collateral or Proceeds and shall be fully discharged thereafter from all
liability and responsibility with respect to any of the foregoing so
transferred, and the transferee shall be vested with all rights and powers of
Bank hereunder with respect to any of the foregoing so transferred; but with
respect to any Collateral or Proceeds not so transferred Bank shall retain all
rights, powers, privileges and remedies herein given. Any proceeds of any
disposition of any of the Collateral or Proceeds, or any part thereof, may be
applied by Bank to the payment of expenses incurred by Bank in connection with
the foregoing, including reasonable attorneys' fees, and the balance of such
proceeds may be applied by Bank toward the payment of the Indebtedness in such
order of application as Bank may from time to time elect.
12. STATUTE OF LIMITATIONS. Until all indebtedness shall have been paid
in full and all commitments by Bank to extend credit to Debtor have been
terminated, the power of sale and all other rights, powers, privileges and
remedies granted to Bank hereunder shall continue to exist and may be exercised
by Bank at any time and from time to time irrespective of the fact that the
indebtedness or any part thereof may have become barred by any statute of
limitations, or that the personal liability of Debtor may have ceased, unless
such liability shall have ceased due to the payment in full of all indebtedness
secured hereunder.
13. MISCELLANEOUS. (a) The obligations of Debtor are joint and several;
(b) Debtor hereby waives any right (i) to require Bank to make any presentment
or demand, or give any notice of nonpayment or nonperformance, protest, notice
of protest or notice of dishonor hereunder, (ii) to direct the application of
payments or security for Indebtedness of Debtor or indebtedness of customers of
Debtor, or (iii) to require proceedings against others or to require exhaustion
of security; and (c) Debtor hereby consents to extensions, forbearances or
alterations of the terms of Indebtedness, the release or substitution of
security, and the release of any guarantors: provided however, that in each
instance, Bank believes in good faith that the action in question is
commercially reasonable in that it does not unreasonably increase the risk of
nonpayment of the Indebtedness to which the action applies. Until all
Indebtedness shall have been paid in full, no Debtor shall have any right of
subrogation or contribution, and each Debtor hereby waives any benefit of or
right to participate in any of the Collateral or Proceeds or any other security
now or hereafter held by Bank.
14. NOTICES. All notices, requests and demands required under this
Agreement must be in writing, addressed to Bank at the address specified in any
other loan documents entered into between Debtor and Bank and to Debtor at the
address of its chief executive office (or personal residence, if applicable)
specified below or to such other address as any party may designate by written
notice to each other party, and shall be deemed to have been given or made as
follows: (a) if personally delivered, upon delivery; (b) if sent by mail, upon
the earlier of the date of receipt or 3 days after deposit in the U.S. mail,
first class and postage prepaid; and (c) if sent by telecopy, upon receipt.
15. COSTS, EXPENSES AND ATTORNEYS' FEES. Debtor shall pay to Bank
immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of Bank's in-house counsel), expended or
incurred by Bank in exercising any right, power, privilege or remedy conferred
by this Agreement or in the enforcement thereof, whether incurred at the trial
or appellate level, in an arbitration proceeding or otherwise, and including any
of the foregoing
incurred in connection with any bankruptcy proceeding (including without
limitation, any adversary proceeding, contested matter or motion brought by Bank
or any other person) relating to Debtor or in any way affecting any of the
Collateral or Bank's ability to exercise any of its rights or remedies with
respect thereto. All of the foregoing shall be paid by Debtor with interest
from the date of demand until paid in full at a rate per annum equal to the
greater of ten percent (10%) or the Prime Rate in effect from time to time. The
"Prime Rate" is a base rate that Bank from time to time establishes and which
serves as the basis upon which effective rates of interest are calculated for
those loans making reference thereto.
16. SUCCESSORS; ASSIGNS; AMENDMENT. This Agreement shall be binding upon
and inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties, and may be amended or
modified only in writing signed by Bank and Debtor.
17. OBLIGATIONS OF MARRIED PERSONS. Any married person who signs this
Agreement as Debtor hereby expressly agrees that recourse may be had against his
or her separate property for all his or her indebtedness to Bank secured by the
Collateral and Proceeds under this Agreement.
18. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall
be held to be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or any remaining provisions
of this Agreement.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of California.
Debtor warrants that its chief executive office (or personal residence, if
applicable) is located at the following address:
0000 XXXXXXXXXX XXXX., XXXXXXX, XX 00000
IN WITNESS WHEREOF, this Agreement has been duly executed as of NOVEMBER
19, 1996.
CHOLESTECH CORPORATION
By: /s/ W.E. Xxxxxxxx
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XXXXXX XXXXXXXX
PRESIDENT
ADDENDUM TO GENERAL PLEDGE AGREEMENT
THIS ADDENDUM is attached to and made a part of that certain General
Pledge Agreement ("Agreement") executed by CHOLESTECH CORPORATION ("Debtor"),
as of November 19, 1996, in favor of XXXXX FARGO BANK, NATIONAL ASSOCIATION
("Bank").
Debtor acknowledges and agrees as follows:
1. COLLATERAL. Notwithstanding any reference in the Agreement to a
transfer, pledge or delivery to Bank, or a deposit with Bank, of the
Collateral and Proceeds defined in paragraph 1 of the Agreement, and
notwithstanding any reference in the Agreement to the possession, custody or
control by Bank of the Collateral or Proceeds, said Collateral includes
without limitation: (a) all securities (whether certificated or
uncertificated), bonds, documents, instruments, money, notes, repurchase
agreements, general intangibles, and all other property of whatever nature or
description, whether tangible or intangible, now or hereafter held on account
of or for Debtor in Debtor's Liquidity Management Account Number 358210114
with Bank ("Account"); (b) the Account itself and all replacements and
substitutions therefor; and (c) Proceeds of all of the foregoing; provided
however, that notwithstanding the generality of the foregoing, the term
"Collateral" does not include any and Bank disclaims a security interest in
all WF Securities or Collective
Investment Funds (as hereinafter defined) now or hereafter in the Account.
2. SECURITY INTEREST. In accordance with and subject to the
provisions of the Agreement, and to secure the obligations described therein,
Debtor grants and transfers to Bank a security interest in all of the
Collateral described in the Agreement and paragraph 1 of this Addendum.
3. ACCOUNT ACTIVITY. So long as no default exists with respect to the
indebtedness secured hereby, Debtor may sell, exchange, transfer or otherwise
dispose of assets in and withdraw assets from the Account, provided however
that the Collateral Value of the Account, as hereinafter defined, shall at
all times be equal to or greater than one hundred percent (100%) of the
outstanding principal balance of the indebtedness secured hereby.
In the event that the Collateral Value of the Account should, for any
reason and at any time, be less than the required amount, Debtor shall
promptly either make a principal reduction on the indebtedness secured
hereby, or pledge to Bank and deposit in the Account additional assets, of a
nature satisfactory to Bank, in either case, sufficient such that the
Collateral Value of the Account achieves the required amount.
4. PRIORITY. The terms of this Addendum override and take precedence
over any provision to the contrary in any other
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agreement or other documentation relative to the opening and maintenance of
the Account.
5. DEFINED TERMS. All terms defined in the Agreement and used herein
shall have the same meaning when used in this Addendum, "WF SECURITIES" means
stock, securities or obligations of Xxxxx Fargo & Company or of any affiliate
thereof (as the term affiliate is defined in Section 23A of the Federal
Reserve Act (12 USC 371 (c), as amended from time to time). "COLLECTIVE
INVESTMENT FUNDS" means a collective investment fund as described in 12 CFR
9.18 and includes without limitation a collective investment fund maintained
by Bank's Trust Department, "COLLATERAL VALUE OF THE ACCOUNT" means the sum
of:
(i) 100% of the face amount of cash and cash equivalents in the Account;
(ii) 90% of the market value of obligations in the Account of the United
States of America, but not to exceed the face amount;
(iii) 90% of the market value of commercial paper in the Account rated
at least A1 by a nationally recognized rating agency, but not to
exceed the face amount;
(iv) 85% of the market value of corporate bonds in the Account (excluding
convertible bonds) rated at least AA
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by a nationally recognized rating agency, but not to exceed the face
amount;
(v) 75% of the market value of corporate and municipal bonds in the
Account (excluding convertible bonds and those described in (iv))
rated at least BBB by a nationally recognized rating agency, but not
to exceed the face amount;
with market value, in all instances, determined by Bank in its sole discretion
and excluding from such computation all WF Securities, Collective Investment
Funds or any other assets in which Bank does not have a first priority perfected
security interest now or hereafter in the Account.
6. NEGATIVE PLEDGE. So long as Bank retains a security interest in the
Collateral, Debtor shall not further pledge, encumber, grant or permit to exist
a security interest in or lien upon any assets now or hereafter in the Account,
including without limitation, WF Securities or Collective Investment Funds.
7. INVESTMENT MANAGER. This Addendum constitutes an instruction and
authorization by Debtor to Debtor's investment manager/adviser to abide by the
terms hereof, and following written instructions from Bank, to manage the
Account in accordance with Bank's instructions.
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IN WITNESS WHEREOF, the Debtor has executed this Addendum as of the same
date as the Agreement.
Acknowledged as of 12/20/96:
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/s/ Xxxxxxxx Xxxxxxxxxxx
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CHOLESTECH CORPORATION
By: Xxxxxxxx Xxxxxxxxxxx
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By: /s/ W.E. Xxxxxxxx
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Xxxxxx Xxxxxxxx Title: AVP
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President
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