STOCK PLEDGE AGREEMENT (Kircher Trust Pledge of SPI Stock)
Exhibit 10.6
Loan No. 68890396
STOCK PLEDGE AGREEMENT
(Xxxxxxx Trust Pledge of SPI Stock)
(Xxxxxxx Trust Pledge of SPI Stock)
This Stock Pledge Agreement (this “Agreement”) is made effective June 22, 2010, by and
between Xxxxxxx X. Xxxxxxx, trustee of the Xxxxxxx Family Irrevocable Trust (“Grantor”) and Umpqua
Bank, an Oregon corporation (“Lender”), with reference to the following recitals:
RECITALS
A. Grantor is an irrevocable trust formed under the laws of the state of California and is the
owner of 2,000,000 shares of the common stock of Solar Power, Inc., a California corporation
(“SPI”).
B. Pursuant to a Loan Agreement of even date with this Agreement by and between Lender and
Solar Tax Partners 1, LLC, a California limited liability company (“Borrower”) (the “Loan
Agreement”), Lender has agreed to lend to Borrower, and Borrower has agreed to borrow from
Lender a loan in the principal amount of Nine Million Nine Hundred Fifty Thousand and 00/100
Dollars ($9,950,000.00) (the “Loan”).
C. The Loan will be evidenced by a Promissory Note Secured by Deed of Trust in the principal
amount of Nine Million Nine Hundred Fifty Thousand and 00/100 Dollars ($9,950,000.00) (the “Note”).
D. Pursuant to the terms of the Loan Agreement, payment and performance of the Indebtedness
are to be guaranteed by Grantor pursuant to a Guaranty of Payment of even date with this Agreement
(the “Guaranty”). Also pursuant to the Loan Agreement, payment and performance of the Indebtedness
is to be secured by a security interest in the Collateral (as defined herein).
E. Grantor will derive substantial direct and indirect benefits from the Lender’s making the
Loan to Borrower. Lender would not make the Loan to Borrower without the security provided by this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Grantor hereby agrees as follows:
1. GRANT OF SECURITY INTEREST. For valuable consideration, Grantor pledges, assigns and grants to
Lender a security interest in the Collateral to secure the Indebtedness and agrees that Lender
shall have the rights stated in this Agreement with respect to the Collateral, in addition to all
other rights which Lender may have by law. Grantor hereby irrevocably appoints Lender as Grantor’s
proxy holder with respect to the Collateral with full power and authority to vote, give consents,
ratifications and waivers and otherwise act with respect to such Collateral on behalf of Grantor,
provided that this proxy shall be operative only upon the occurrence and continuance of an Event of
Default beyond any applicable notice and cure period. This proxy shall be irrevocable for so long
as any Indebtedness remains outstanding. Until such time, if any, as Grantor receives written
notice that Lender is exercising its rights hereunder as a result of an Event of Default, Grantor
shall be entitled to exercise any and all voting and other consensual rights pertaining to the
Collateral or any part thereof for any purpose not inconsistent with the terms of this Agreement.
1.1 Reduction of Value of Pledged Stock. The value of the Pledged Stock, as determined by
Lender as of December 31of each calendar year pursuant to published sources deemed reliable, shall
at no time be less than One Hundred Twenty-Five Percent (125%) of the maximum principal amount of
the Xxxxxxx Trust Guaranty, as that amount may be reduced from time to time pursuant to Section
2.3 and the Xxxxxxx Trust Guaranty. Shares of stock representing value in excess of that
amount may be released concurrently with reductions in Grantor’s maximum principal liability under
the Xxxxxxx Trust Guaranty.
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2. DEFINITIONS. The following words shall have the following meanings when used in this Agreement.
Terms not otherwise defined in this Agreement and the Loan Agreement shall have the meanings
attributed to such terms in the Uniform Commercial Code. All references to dollar amounts shall
mean amounts in lawful money of the United States of America.
2.1 Agreement means this Stock Pledge Agreement, as may be amended or modified from time to
time, together with all exhibits and schedules attached to this Stock Pledge Agreement from time to
time.
2.2 Collateral means the following described property of Grantor, whether now owned or
hereafter acquired, whether now existing or hereafter arising, and wherever located:
the Pledged Stock, and all Proceeds thereof.
In addition, and without limiting the generality of the foregoing, the word “Collateral” includes
all the following, whether now owned or hereafter acquired, whether now existing or hereafter
arising, and wherever located:
(i) All replacements of and substitutions for the Collateral;
(ii) All dividends and distributions arising out of or in connection with any of the
Collateral except those paid in accordance with this Agreement;
(iii) All accounts, contract rights, general intangibles, instruments, monies, payments, and
all other rights, arising out of a sale or other disposition of any of the property described
above;
(iv) All proceeds from the sale or other disposition of any of the Collateral; and
(v) All records and data relating to any of the Collateral described above, whether in the
form of a writing, photograph, microfilm, microfiche, or electronic media.
2.3 Event of Default is defined at Section 5 hereof.
2.4 Guarantor means and includes without limitations, each and all of the guarantors,
sureties, and accommodation parties in connection with the Indebtedness, and any other party or
person, other than Borrower, that pledges assets to secure the Indebtedness.
2.5 Indebtedness means the indebtedness in connection with the Loan issued pursuant to the
Loan Agreement, including all principal and interest and other amounts owing under the Note,
together with all other indebtedness and costs and expenses for which Borrower is responsible under
this Agreement or under any of the Loan Documents. The word AIndebtedness@ also
includes all other obligations, debts and liabilities, plus interest thereon, of Borrower to Bank,
as well as all claims by Bank against Borrower, whether existing now or later; whether they are
voluntary or involuntary, due or not due, direct or indirect, absolute or contingent, liquidated or
unliquidated; whether Borrower may be liable individually of jointly with others; whether Borrower
may be obligated as guarantor, surety, accommodation party or otherwise; whether recovery upon such
indebtedness may be or hereafter may become barred by any statute of limitations; and whether such
indebtedness may be or hereafter may become otherwise unenforceable.
2.6 Xxxxxxx Trust Guaranty means that certain Continuing Guaranty of even date with this
Agreement, executed by Grantor in favor of Lender, guarantying payment and performance of the
Indebtedness.
2.7 Loan Documents is defined in the Loan Agreement.
2.8 Note is defined in Recital C.
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2.9 Pledged Stock means, initially, 2,000,000 common shares of Solar Power, Inc., subject to
reduction as provided in Section 1.1 hereof.
2.10 Share Certificates means Certificate Nos. 6386-8517-BF07 and 1861-3000-BF07, issued by
Solar Power, Inc., evidencing the Pledged Stock.
2.11 Uniform Commercial Code means the California Uniform Commercial Code.
3. OBLIGATIONS OF GRANTOR. Grantor warrants and covenants to Lender as follows:
3.1 Perfection of Security Interest. As a condition precedent to any obligation of Lender to
make the Loan, Grantor shall deliver to Lender possession of the original Share Certificates,
evidencing Pledged Stock with a value not less than that required under Section 1.1 hereof
as that requirement may be reduced from time to time. Upon request of Lender, Grantor will deliver
to Lender any and all other documents evidencing or constituting the Collateral. Grantor hereby
appoints Lender as its irrevocable attorney-in-fact for the purpose of executing any documents
necessary to perfect or to continue the security interest granted in this Agreement. Lender may at
any time, and without further authorization from Grantor, file a financing statement to perfect its
interest in any of the Collateral. Grantor will reimburse Lender for all expenses for the
perfection and the continuation of the perfection of Lender’s security interest in the Collateral.
Grantor promptly will notify Lender of any change in Grantor’s name including any change to the
assumed business names of Grantor. This is a continuing Security Agreement and will continue in
effect until the Indebtedness is paid in full; provided, however, that the number of shares of
Pledged Stock that are pledged to Lender to secure the Indebtedness may be reduced from time to
time under the terms and subject to the conditions precedent stated in the Loan Agreement.
3.2 Duties and Rights of Secured Party. Lender shall have no duty of any kind or nature
whatsoever with respect to the Collateral, other than to hold, release or dispose of the same in
accordance with the terms and provisions of this Agreement. With respect to each particular item of
Collateral, the security interest herein granted shall attach immediately upon Grantor’s execution
hereof or as soon as Grantor acquires rights in and to such item of Collateral, whichever is later.
3.3 No Violation. The execution and delivery of this Agreement will not violate any law or
agreement governing Grantor or to which Grantor is a party.
3.4 Transactions Involving Collateral. Grantor shall not pledge, mortgage, encumber or
otherwise permit the Collateral to be subject to any lien, security interest, encumbrance, or
charge, other than the security interest provided for in this Agreement, without the prior written
consent of Lender. This includes security interests even if junior in right to the security
interests granted under this Agreement. Unless waived by Lender, all proceeds from any disposition
of the Collateral (for whatever reason) shall be held in trust for Lender and shall not be
commingled with any other funds; provided however, this requirement shall not constitute consent by
Lender to any sale or other disposition. Upon receipt, Grantor shall immediately deliver any such
proceeds to Lender for application to the Indebtedness.
3.5 Title. Grantor represents and warrants to Lender that it holds good and marketable title
to the Collateral, and encumbrances except for the lien of this Agreement. To the best of
Grantor=s knowledge, no financing statement covering any of the Collateral is on file in any
public office other than those which reflect the security interest created by this Agreement or to
which Lender has specifically consented. Grantor shall defend Lender’s rights in the Collateral
against the claims and demands of all other persons.
3.6 Taxes, Assessments and Liens. Grantor will pay when due all taxes, assessments and liens
upon the Collateral upon this Agreement. Grantor may withhold any such payment or may elect to
contest any lien if
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Grantor is in good faith conducting an appropriate proceeding to contest the
obligation to pay and so long as Lender’s interest in the Collateral is not jeopardized in Lender’s
sole opinion. If the Collateral is subjected to a lien which is not discharged within thirty (30)
days, Grantor shall deposit with Lender cash, a sufficient corporate surety bond or other security
satisfactory to Lender in an amount adequate to provide for the discharge of the lien plus any
interest, costs, attorneys’ fees or other charges that could accrue as a result of foreclosure or
sale of the Collateral. In any such contest Grantor shall defend itself and Lender and shall
satisfy any final adverse judgment before enforcement against the Collateral. Grantor shall name
Lender as an additional obligee under any surety bond furnished in the contest proceedings.
3.7 Compliance With Governmental Requirements. Grantor shall materially comply promptly with
all laws, ordinances and regulations of all governmental authorities applicable to the production,
disposition, or use of the Collateral. Grantor may contest in good faith any such law, ordinance
or regulation and withhold compliance during any proceeding, including appropriate appeals, so long
as Lender’s interest in the Collateral, in Lender’s reasonable opinion, is not jeopardized.
4. EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may (but shall not be
obligated to) discharge or pay any amounts required to be discharged or paid by Grantor under this
Agreement, including without limitation all taxes, liens, security interests, encumbrances, and
other claims, at any time levied or placed on the Collateral. Lender also may (but shall not be
obligated to) pay all costs for maintaining and preserving the Collateral. All such expenditures
reasonably incurred or paid by Lender for such purposes will then bear interest at the rate charged
under the Note from the date incurred or paid by Lender to the date of repayment by Grantor. All
such expenses shall become a part of the Indebtedness and, at Lender’s option, will (a) be payable
on demand, (b) be added to the balance of the Note and be apportioned among and be payable with any
installment payments to become due during the remaining term of the Note, or (c) be treated as a
balloon payment which will be due and payable at the Note’s maturity. This Agreement also will
secure payment of these amounts. Such right shall be in addition to all other rights and remedies
to which Lender may be entitled upon the occurrence of an Event of Default.
5. EVENTS OF DEFAULT. The occurrence of any Event of Default set forth in any other Loan Document
shall be an Event of Default under this Agreement.
6. RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this Agreement and
continues beyond any applicable notice and at any time thereafter while the same is continuing,
Lender shall have all the rights of a secured party under the California Uniform Commercial Code.
In addition and without limitation, Lender may exercise any one of more of the following rights and
remedies together with any other remedies available under the Loan Documents, at law or in equity.
6.1 Sell the Collateral. Lender shall have full power to sell, lease, transfer, or otherwise
deal with the Collateral or proceeds thereof in its own name or that of Grantor. Lender may sell
the Collateral at public auction or private sale. Lender will give Grantor reasonable notice of the
time after which any private sale of any other intended disposition of the Collateral is to be
made. The requirements of reasonable notice shall be met if such notice is given at least ten (10)
days, or such lesser time as required by state law, before the time of the sale or disposition.
All reasonable expenses relating to the disposition of the Collateral, including without limitation
the expenses of retaking, holding, insuring, preparing for sale and selling the Collateral, shall
become a part of the Indebtedness secured by this Agreement and shall be payable on demand, with
interest at the Note rate from date of expenditure until repaid.
6.2 Appoint Receiver. To the extent permitted by applicable law, Lender shall have the
following rights and remedies regarding the appointment of a receiver; (a) Lender may have a
receiver appointed as a matter
of right, (b) the receiver may be an employee of Lender and may serve without bond, and (c)
all fees of the receiver and his or her attorney shall become part of the Indebtedness secured by
this Agreement and shall be payable on demand, with interest at the Note rate from date of
expenditure until repaid.
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6.3 Collect Revenues, Apply Accounts. Lender, either itself or through a receiver, may
collect the payments, rents, income, revenues, dividends and other Proceeds from the Collateral and
apply same to the Indebtedness. Lender may at any time in its discretion transfer any Collateral
into its own name or that of its nominee and receive the payments, rents, income, revenues,
dividends and Proceeds therefrom and hold the same as security for the Indebtedness or apply it to
payment of the Indebtedness in such order of preference as Lender may determine.
6.4 Other Rights and Remedies. Lender shall have all the rights and remedies of a secured
creditor under the provisions of the Uniform Commercial Code, as may be amended from time to time.
In addition, Lender shall have and may exercise any or all other rights and remedies it may have
available at law, in equity, or otherwise.
6.5 Cumulative Remedies. All of Lender’s rights and remedies, whether evidenced by this
Agreement or the Loan Documents or by any other writing, shall be cumulative and may be exercised
singularly or concurrently. Election by Lender to pursue any remedy shall not exclude pursuit of
any other remedy, and an election to make expenditures or to take action to perform an obligation
of Grantor under this Agreement. after Grantor’s failure to perform, shall not affect Lender’s
right to declare a default and to exercise its remedies.
7. CONSENTS OF GRANTOR. Grantor hereby unconditionally consents and agrees that, without notice to
or further assent from Grantor:
7.1 The principal amount of the Indebtedness may be increased or decreased and additional
Indebtedness or obligations of the Borrower under the Loan Documents may be incurred, by one or
more amendments, modifications, renewals or extensions of any Loan Document or otherwise;
7.2 The time, manner, place or terms of any payment under any Loan Document may be extended or
changed, including by an increase or decrease in the interest rate on any Indebtedness or any fee
or other amount payable related to the Indebtedness or under such Loan Document, by an amendment,
modification or renewal of any Loan Document or otherwise;
7.3 The time for the Borrower’s (or any other Person’s) performance of or compliance with any
term, covenant or agreement on its part to be performed or observed under any Loan Document may be
extended, or such performance or compliance waived, or failure in or departure from such
performance or compliance consented to, all in such manner and upon such terms as the Lender may
deem proper;
7.4 The Lender may discharge or release, in whole or in part, any other grantor of security
for the Indebtedness, or any Guarantor or other Person liable for the payment and performance of
all or any part of the Indebtedness, and may permit or consent to any such action or any result of
such action, and shall not be obligated to demand or enforce payment upon any of the collateral for
the Indebtedness, nor shall the Lender be liable to the Grantor for any failure to collect or
enforce payment or performance of the Indebtedness from any Guarantor or Person or to realize on
the collateral therefor;
7.5 In addition to the collateral encumbered by the Security Documents, the Lender may take
and hold other security (legal or equitable) of any kind, at any time, as collateral for the
Indebtedness, and may, from time to time, in whole or in part, exchange, sell, surrender, release,
subordinate, modify, waive, rescind, compromise or extend such security and may permit or consent
to any such action or the result of any such action, and may apply such security and direct the
order or manner of sale thereof;
7.6 The Lender may request and accept other guaranties of the Indebtedness and any other
Indebtedness, obligations or liabilities of the Borrower to the Lender and may, from time to time,
in whole or in
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part, surrender, release, subordinate, modify, waive, rescind, compromise or extend
any such guaranty and may permit or consent to any such action or the result of any such action;
and
7.7 The Lender may exercise, or waive or otherwise refrain from exercising, any other right,
remedy, power or privilege (including the right to accelerate the maturity of any Indebtedness and
any power of sale) granted by any Loan Document or Security Document or agreement, or otherwise
available to the Lender, with respect to the Indebtedness, any of the collateral or other security
for any or all of the Indebtedness, even if the exercise of such right, remedy, power or privilege
affects or eliminates any right of subrogation or any other right of the Grantor against the
Borrower;
all as the Lender may deem advisable, and all without impairing, abridging, releasing or
affecting this Agreement.
| 8. | GRANTOR’S WAIVERS. |
8.1 Grantor waives and agrees not to assert:
(a) any right to require Lender to marshal assets in favor of the Borrower, the Grantor, any
Guarantor or any other Person, to proceed against the Borrower, any other Grantor of collateral for
the Indebtedness or any Guarantor or other Person, to proceed against or exhaust any of the
collateral or any other security held for the Indebtedness, to give notice of the terms, time and
place of any public or private sale of personal property security constituting the collateral or
any other collateral or security for the Indebtedness or comply with any other provisions of §9504
of the California Commercial Code (or any equivalent provision of any other applicable law) or to
pursue any other right, remedy, power or privilege of Lender whatsoever;
(b) the defense of the statute of limitations in any action hereunder or for the collection or
performance of the Indebtedness;
(c) any defense arising by reason of any lack of corporate or other authority or any other
defense of the Borrower, the Grantor, any Guarantor, or any other Person;
(d) any defense based upon Lender or Trustee’s errors or omissions in the administration of
the Indebtedness;
(e) any rights to set-offs and counterclaims;
(f) (A) the Grantor’s rights of subrogation, reimbursement, indemnification, and contribution
and (B) any other rights and defenses that are or may become available to the Grantor by reason of
California Civil Code Sections 2787 to 2855, inclusive;
(vii) any rights or defenses the Grantor may have in respect of its obligations as a Grantor
of collateral for the Indebtedness, a guarantor or other surety by reason of any election of
remedies by the creditor;
(viii) any rights or defenses Grantor may have because the Loan obligation is secured by real
property or an estate for years. These rights or defenses include, but are not limited to, any
rights or defenses that are based upon directly or indirectly, the application of Section 580a,
580b, 580d or 726 of the California Code of Civil Procedure to the Loan;
(ix) any rights or defenses that Grantor may have because the Loan is secured by real
property. This means, among other things: (A) Assignee may collect from Grantor without first
foreclosing on any real or personal property collateral pledged by Borrower; and (B) If Assignee
forecloses on any real property
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collateral pledged by Borrower: (1) The amount of the
Indebtedness may be reduced only by the price for which that collateral is sold at the foreclosure
sale, even if the collateral is worth more than the sale price; and (2) Assignee may collect from
Grantor even if Assignee or Trustee, by foreclosing on the real property collateral, has destroyed
any right Grantor may have to collect from Borrower. This is an unconditional and irrevocable
waiver of any rights and defenses Grantor may have because the Borrower’s debt is secured by real
property. These rights and defenses include, but are not limited to, any rights or defenses based
upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure;
(x) any rights or defenses arising out of an election of remedies by the creditor, even though
that election of remedies, such as a nonjudicial foreclosure with respect to security for the
Indebtedness has destroyed the Grantor’s rights of subrogation and reimbursement against the
principal by the operation of California Code of Civil Procedure Section 580d or otherwise; and
(xi) without limiting the generality of the foregoing, to the fullest extent permitted by law,
any defenses or benefits that may be derived from or afforded by applicable law limiting the
liability of or exonerating guarantors or sureties, or which may conflict with the terms of this
Agreement.
(b) The Grantor waives any and all notice of the acceptance of this Agreement, and any and all
notice of the creation, renewal, modification, extension or accrual of the Indebtedness, or the
reliance by Lender upon this Agreement, or the exercise of any right, power or privilege hereunder.
The Indebtedness shall conclusively be deemed to have been created, contracted, incurred and
permitted to exist in reliance upon this Agreement. The Grantor waives promptness, diligence,
presentment, protest, demand for payment, notice of default, dishonor or nonpayment and all other
notices to or upon the Borrower, the Grantor or any guarantor or other person with respect to the
Indebtedness.
(c) The obligations of the Grantor hereunder are independent of and separate from the
obligations of the Borrower, or any other guarantor or grantor and upon the occurrence and during
the continuance of any Event of Default, a separate action or actions may be taken or brought
against the Grantor to foreclose this Agreement, whether or not the Borrower or any Guarantor or
any other grantor of collateral for the Indebtedness is joined therein or a separate action or
actions are brought against the Borrower , any Guarantor, or any other grantor.
(d) The Grantor shall not have any right to require Lender to obtain or disclose any
information with respect to: (i) the financial condition or character of the Borrower or the
ability of the Borrower to pay and perform the Indebtedness; (ii) the Indebtedness; (iii) the
collateral or other security for any or all of the Indebtedness; (iv) the existence or nonexistence
of any other guarantees of all or any part of the Indebtedness; (v) any action or inaction on the
part of Lender or any other Person; or (vi) any other matter, fact or occurrence whatsoever.
(e) The Grantor shall not have, shall not directly or indirectly exercise, and hereby
subordinates to the rights of Assignee and Borrower, (i) any rights that it may acquire by way of
subrogation under this Agreement, by any payment hereunder or otherwise, (ii) any rights of
contribution, indemnification, reimbursement or similar suretyship claims arising out of this
Agreement, and (iii) any other right which it might otherwise have or acquire (in any way
whatsoever) which could entitle it at any time to share or participate in any right, remedy or
security of Lender as against the Borrower, other grantor, or any guarantor, whether in connection
with any of the Loan Documents or otherwise. If any amount shall be paid to the Grantor on account
of the foregoing rights at any time when all the Indebtedness shall not have been paid in full,
such amount shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender
to be credited and applied to the Indebtedness, whether matured or unmatured, in accordance with
the terms of the Loan Documents.
9. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement:
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9.1 Amendments. This Agreement constitutes the entire understanding and agreement of the
parties as to the matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the party or parties sought to
be charged or bound by the alteration or amendment.
9.2 Applicable Law. This Agreement has been delivered to Lender and accepted by Lender in the
State of California. If there is a lawsuit, Grantor agrees upon Lender’s request to submit to the
jurisdiction of the courts of Sacramento County, State of California. This Agreement shall be
governed by and construed in accordance with the laws of the State of California.
9.3 Attorneys Fees; Expenses. Grantor agrees to pay upon demand all of Lender’s reasonable
costs and expenses, including attorneys’ fees and Lender’s legal expenses incurred in connection
with the enforcement of this Agreement outside of a judicial or quasi-judicial proceeding. Lender
may pay someone else to help enforce this Agreement in that manner and Grantor shall pay the costs
and expenses of such enforcement. In the event of any action, proceeding, or arbitration arising
out of or in connection with this Agreement, whether or not pursued to judgment, the prevailing
party shall be entitled, in addition to all other relief, to recover its costs and reasonable
attorneys’ fees, including those incurred in any case, action, proceeding or claim under the
Federal Bankruptcy Code or any successor statute. Costs and expenses include attorneys’ fees,
legal expenses, expert witness and consulting fees whether or not there is a lawsuit, including
attorneys’ fees, costs and legal expenses for bankruptcy proceedings (including efforts to modify
or vacate any automatic stay or injunction), appeals, or post-judgment collection services or
proceedings.
9.4 Caption Headings. Caption headings in this Agreement are for convenience purposes only
and are not to be used to interpret or define the provisions of this Agreement.
9.5 Notices. All notices required to be given to Grantor and Lender under this Agreement
shall be given in writing and shall be delivered as prescribed in Section 9.3 of the Loan
Agreement.
9.6 Power of Attorney. Grantor hereby appoints Lender as its true and lawful
attorney-in-fact, irrevocably, with full power of substitution to do any and all acts which Grantor
is obligated to do by this Agreement and for the purposes of carrying out the purposes of this
Agreement and taking any action and executing any instruments which Lender may deem necessary or
advisable to accomplish the purposes of this Agreement. Without limiting the generality of the
forgoing, Lender shall have the right to do the following: (a) to demand, collect, receive, receipt
for, xxx and recover all sums of money or other property which may now or hereafter become due,
owing or payable from the Collateral; (b) to execute, sign and endorse any and all claims,
instruments, receipts, checks, drafts or warrants issued in payment for the Collateral; (c) to
settle or compromise any and all claims arising under the Collateral, and, in the place and stead
of Grantor, to execute and deliver its release and settlement for the claim; and (d) to file any
claim or claims or to take any action or institute or take part in any proceedings, either in its
own name or in the name of Grantor, or otherwise, which in the discretion of Lender may seem to be
necessary or advisable. This power is given as security for the Indebtedness, and the authority
hereby conferred is and shall be irrevocable and coupled with an interest and shall remain in full
force and effect until renounced by Lender. Lender agrees that this power of attorney shall not be
exercised until such time as Lender gives Grantor written notice of an Event of Default.
9.7 Further Assurances. The parties hereto hereby agree to execute such other documents and
take such other action as may be reasonably necessary to further the purposes of this Agreement.
9.8 Preference Payments. Any monies Lender pays because of an asserted preference claim in
Grantor’s bankruptcy will become a part of the Indebtedness and, at Lender’s option, shall be
payable by Grantor as provided in Section 4, above.
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9.9 Severability. If a court of competent jurisdiction finds any provision of this Agreement
to be invalid of unenforceable as to any person or circumstance, such finding shall not render that
provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the limits of enforceability or
validity; however, if the offending provision cannot be so modified, it shall be stricken and all
other provisions of this Agreement in all other respects shall remain valid and enforceable.
9.10 Successor Interests. Subject to the limitations set forth above on transfer of the
Collateral, this Agreement shall be binding upon and inure to the benefit of the parties, their
successors and assigns.
9.11 Captions and Interpretations. Titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or describe the scope
of this Agreement or any provision hereof. No provision in this Agreement is to be interpreted for
or against either party because that party or his legal representative drafted such provision.
9.12 Incorporation of Recitals. All recitals set forth in the Recital section of this
Agreement are incorporated herein and are deemed to be true and correct as of the Effective Date.
9.13 Waiver. Lender shall not be deemed to have waived any rights under this Agreement unless
such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender
in exercising any right shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender’s
right otherwise to demand strict compliance with that provision or any other provision of this
Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall
constitute a waiver of any of Lender’s rights or of any of Grantor’s obligations as to any future
transactions. Whenever the consent of Lender is required under this Agreement, the granting of
such consent by Lender in any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may be granted or withheld
in the sole discretion of Lender.
9.14 Waiver of Co-Obligor’s Rights. If more than one person is obligated for the
Indebtedness, Grantor irrevocably waives, disclaims and relinquishes all claims against such other
person which Grantor has or would otherwise have by virtue of payment of the Indebtedness or any
part thereof, specifically including but not limited to all rights of indemnity, contribution or
exoneration.
9.15. Jury Trial Waiver. Grantor waives any right to trial by jury with respect to any action
or proceeding relating to the Loan, the Loan Documents, this Agreement or any understandings or
prior dealings between the parties.
GRANTOR AGREES THAT THIS AGREEMENT CONSTITUTES A WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY
PURSUANT TO THE PROVISIONS OF CODE OF CIVIL PROCEDURE § 631 AND GRANTOR DOES CONSTITUTE AND APPOINT
ASSIGNEE ITS TRUE AND LAWFUL ATTORNEY-IN-FACT (THE APPOINTMENT BEING COUPLED WITH AN INTEREST) AND
GRANTOR DOES AUTHORIZE AND EMPOWER ASSIGNEE, IN THE NAME, PLACE, AND STEAD OF BORROWER, TO FILE
THIS AGREEMENT WITH THE CLERK OR JUDGE OF ANY COURT OF COMPETENT JURISDICTION AS A STATUTORY
WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY.
Initials: [Insert initials of parties].
9.16. Judicial Reference Provision.
(a) In the event the Jury Trial Waiver set forth above is not enforceable, the parties elect
to proceed under this Judicial Reference Provision.
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(b) With the exception of the items specified in clause (c), below, any controversy, dispute
or claim (each, a “Claim”) between the parties arising out of or relating to the Loan or this
Agreement or any other document, instrument or agreement between the undersigned parties
(collectively in this Section, the “Bank Documents”), will be resolved by a reference proceeding in
California in accordance with the provisions of Sections 638 et seq. of the California Code of
Civil Procedure (“CCP”), or their successor sections, which shall constitute the exclusive remedy
for the resolution of any Claim, including whether the Claim is subject to the reference
proceeding. Except as otherwise provided in the Bank Documents, venue for the reference proceeding
will be in the state or federal court in the county or district where the real property involved in
the action, if any, is located or in the state or federal court in the county or district where
venue is otherwise appropriate under applicable law (the “Court”).
(c) The matters that shall not be subject to a reference are the following: (i) nonjudicial
foreclosure of any security interests in real or personal property, (ii) exercise of self-help
remedies (including, without limitation, set-off), (iii) appointment of a receiver and (iv)
temporary, provisional or ancillary remedies (including, without limitation, writs of attachment,
writs of possession, temporary restraining orders or preliminary injunctions). This reference
provision does not limit the right of any party to exercise or oppose any of the rights and
remedies described in clauses (i) and (ii) or to seek or oppose from a court of competent
jurisdiction any of the items described in clauses (iii) and (iv). The exercise of, or opposition
to, any of those items does not waive the right of any party to a reference pursuant to this
reference provision as provided herein.
(d) The referee shall be a retired judge or justice selected by mutual written agreement of
the parties. If the parties do not agree within ten (10) days of a written request to do so by any
party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the
Court (or his or her representative). A request for appointment of a referee may be heard on an ex
parte or expedited basis, and the parties agree that irreparable harm would result if ex parte
relief is not granted. Pursuant to CCP § 170.6, each party shall have one peremptory challenge to
the referee selected by the Presiding Judge of the Court (or his or her representative).
(e) The parties agree that time is of the essence in conducting the reference proceedings.
Accordingly, the referee shall be requested, subject to change in the time periods specified herein
for good cause shown, to (i) set the matter for a status and trial-setting conference within
fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues
of law or fact within one hundred twenty (120) days after the date of the conference and (iii)
report a statement of decision within twenty (20) days after the matter has been submitted for
decision.
(f) The referee will have power to expand or limit the amount and duration of discovery. The
referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s
failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based
upon good cause shown, no party shall be entitled to “priority” in conducting discovery,
depositions may be taken by either party upon seven (7) days written notice, and all other
discovery shall be responded to within fifteen (15) days after service. All disputes relating to
discovery which cannot be resolved by the parties shall be submitted to the referee whose decision
shall be final and binding.
(g) Except as expressly set forth herein, the referee shall determine the manner in which the
reference proceeding is conducted including the time and place of hearings, the order of
presentation of evidence, and all other questions that arise with respect to the course of the
reference proceeding. All proceedings and hearings conducted before the referee, except for trial,
shall be conducted without a court reporter, except that when any party so requests, a court
reporter will be used at any hearing conducted before the referee, and the referee will be
provided a courtesy copy of the transcript. The party making such a request shall have the
obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs
to the prevailing party, the parties will equally share the cost of the referee and the court
reporter at trial.
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(h) The referee shall be required to determine all issues in accordance with existing case law
and the statutory laws of the State of California. The rules of evidence applicable to proceedings
at law in the State of California will be applicable to the reference proceeding. The referee shall
be empowered to enter equitable as well as legal relief, enter equitable orders that will be
binding on the parties and rule on any motion which would be authorized in a court proceeding,
including without limitation motions for summary judgment or summary adjudication. The referee
shall issue a decision at the close of the reference proceeding, which disposes of all claims of
the parties that are the subject of the reference. Pursuant to CCP § 644, such decision shall be
entered by the Court as a judgment or an order in the same manner as if the action had been tried
by the Court and any such decision will be final, binding and conclusive. The parties reserve the
right to appeal from the final judgment or order or from any appealable decision or order entered
by the referee. The parties reserve the right to findings of fact, conclusions of laws, a written
statement of decision, and the right to move for a new trial or a different judgment, which new
trial, if granted, is also to be a reference proceeding under this provision.
(i) If the enabling legislation, which provides for appointment of a referee is repealed (and
no successor statute is enacted), any dispute between the parties that would otherwise be
determined by reference procedure will be resolved and determined by arbitration. The arbitration
will be conducted by a retired judge or justice, in accordance with the California Arbitration Act
§1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to
discovery set forth above shall apply to any such arbitration proceeding.
(j) THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED UNDER
THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY
KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE
PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR
IN ANY WAY RELATED TO, THE LOAN OR THIS AGREEMENT, OR THE OTHER BANK DOCUMENTS.
Initials: [Insert initials of parties].
9.17 Return of Collateral. Lender agrees to return the Collateral to Grantor promptly upon
payment in full of the Indebtedness ant the termination of any obligation of Lender to make further
Advances.
9.18 Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be an original, but all of which shall constitute one and the same instrument, with the same
effect as if all parties had signed the same signature page. The parties authorize removal of the
signature page of this Agreement from any counterpart copy and the attachment of all signature
pages to a single counterpart copy so that the signatures of all those signing will be physically
attached to the same document. Delivery of an executed counterpart of this Agreement by facsimile
shall be equally as effective as delivery of an originally executed counterpart of this Agreement.
Any party delivering an executed counterpart of this Agreement by facsimile shall also deliver an
originally executed counterpart of this Agreement, but failure to deliver an originally executed
counterpart shall not affect the validity, enforceability or binding effect of this Agreement.
9.19 USA Patriot Act Notice. Lender hereby notifies Grantor that pursuant to the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”), it is required to
obtain, verify and record information that identifies Grantor, which information includes the
name and address of Grantor and other information that will allow Lender to identify Grantor in
accordance with the Act.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE(S)]
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GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS STOCK PLEDGE AGREEMENT, AND
GRANTOR AGREES TO ITS TERMS. THIS AGREEMENT IS DATED AS OF THE DATE FIRST SET FORTH ABOVE.
GRANTOR:
/s/
Xxxxxxx X. Xxxxxxx |
||
Xxxxxxx Family Irrevocable Trust |
||
LENDER: |
||
Umpqua Bank, an Oregon corporation |
| By: | /s/ Xx Xxxxxx | |||
| Xx Xxxxxx | ||||
| Senior Vice President | ||||
