EXHIBIT 10.3
Execution Version
STOCK PLEDGE AGREEMENT
This STOCK PLEDGE AGREEMENT (this "Agreement"), dated as of
April 18, 2003, is entered into by and between SHOE PAVILION, INC., a Delaware
corporation ("Pledgor"), and ▇▇▇▇▇ FARGO RETAIL FINANCE, LLC, a Delaware limited
liability company ("Lender"), with reference to the following:
WHEREAS, Shoe Pavilion Corporation, a California corporation,
and Lender, are contemporaneously herewith entering into that certain Loan and
Security Agreement of even date herewith (as amended, restated, modified,
renewed or extended from time to time, the "Loan Agreement");
WHEREAS, contemporaneously herewith, Pledgor is entering into
that certain General Continuing Guaranty (the "Guaranty") in favor of Lender
respecting certain obligations of Borrower to Lender and the Bank Product
Providers in connection with the Loan Agreement;
WHEREAS, Pledgor beneficially owns the specified Equity
Interests identified as Pledged Interests in the Persons identified as Issuers
listed under the name of Pledgor on Schedule A attached hereto (or any addendum
thereto); and
WHEREAS, to induce Lender to make the financial accommodations
provided to the Borrower pursuant to the Loan Agreement, Pledgor desires to
pledge, grant, transfer, and assign to Lender, for the benefit of Lender and the
Bank Product Providers, a security interest in the Pledged Collateral (as
hereinafter defined) to secure the Secured Obligations (as hereinafter defined),
as provided herein.
NOW, THEREFORE, in consideration of the mutual promises,
covenants, representations, and warranties set forth herein and for other good
and valuable consideration, the parties hereto agree as follows:
1. Definitions And Construction.
(a) Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement. The following terms, as used in this Agreement, shall have the
following meanings:
"Agreement" has the meaning set forth in the preamble to this
Agreement.
"Bank Product Provider" has the meaning ascribed to such term
in the Loan Agreement.
"Borrower" has the meaning set forth in the recitals to this
Agreement.
"Chief Executive Office" means the address of the chief
executive office of Pledgor set forth on Schedule B to this Agreement.
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"Designated Number" means, with respect to any Foreign Issuer,
the largest whole number of Equity Interests of such Foreign Issuer representing
not greater than sixty-six (66%) of all of the fully diluted issued and
outstanding Equity Interests of such Foreign Issuer (whether or not owned by
Pledgor).
"Domestic Issuer" means, individually and collectively, each
Issuer which is not a Foreign Issuer.
"Equity Interests" means all shares, units, options, warrants,
interests, participations, or other equivalents (regardless of how designated)
of or in a corporation, partnership, limited liability company, or equivalent
entity, whether voting or nonvoting, including general partner partnership
interests, limited partner partnership interests, common stock, preferred stock,
or any other "equity security" (as such term is defined in Rule 3a11-1 of the
General Rules and Regulations promulgated by the SEC under the Exchange Act).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"Foreign Issuer" means, individually and collectively, any
Subsidiary of Pledgor which is formed in a jurisdiction other than the United
States.
"Future Rights" means:
(a) with respect to each Domestic Issuer, (i) all Equity
Interests (other than Pledged Interests) of such Domestic Issuer, and all
securities convertible or exchangeable into, and all warrants, options, or other
rights to purchase, Equity Interests of such Domestic Issuer; (ii) to the extent
of Pledgor's interest therein, all shares of, all securities convertible or
exchangeable into, and all warrants, options, or other rights to purchase Equity
Interests of any Person in which Pledgor, after the date of this Agreement,
acquires a direct equity interest, irrespective of whether such Person is or
becomes a Subsidiary of Pledgor; and (iii) the certificates or instruments
representing such additional Equity Interests, convertible or exchangeable
securities, warrants, and other rights and all dividends, cash, options,
warrants, rights, instruments, and other property or proceeds from time to time
received, receivable, or otherwise distributed in respect of or in exchange for
any or all of such Equity Interests; and
(b) with respect to each Foreign Issuer, (i) all Equity
Interests (other than Pledged Interests) of such Foreign Issuer, and all
securities convertible or exchangeable into, and all warrants, options, or other
rights to purchase, Equity Interests of such Foreign Issuer; (ii) to the extent
of Pledgor's interest therein, all shares of, all securities convertible or
exchangeable into, and all warrants, options, or other rights to purchase Equity
Interests of any Person in which Pledgor, after the date of this Agreement,
acquires a direct equity interest, irrespective of whether such Person is or
becomes a Subsidiary of Pledgor; and (iii) the certificates or instruments
representing such additional Equity Interests, convertible or exchangeable
securities, warrants, and other rights and all dividends, cash, options,
warrants, rights, instruments, and other property or proceeds from time to time
received, receivable, or otherwise distributed in
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respect of or in exchange for any or all of such Equity Interests, provided,
however, that Future Rights under the preceding clauses (b)(i), (b)(ii), and
(b)(iii) shall exclude any Future Rights to the extent and only to the extent
that their inclusion would cause the number of Equity Interests pledged
hereunder to exceed the Designated Number after giving effect to the issuance of
such Future Rights and any related issuances.
"Guaranty" has the meaning set forth in the recitals to this
Agreement.
"Holder" and "Holders" have the meanings set forth in Section
3 of this Agreement.
"Issuers" means each of the Persons identified as an Issuer on
Schedule A attached hereto (or any addendum thereto), and any successors
thereto, whether by merger or otherwise.
"Lender" has the meaning set forth in the preamble to this
Agreement, together with its successors or assigns.
"Loan Agreement" has the meaning set forth in the recitals to
this Agreement.
"Pledged Collateral" means the Pledged Interests, the Future
Rights, and the Proceeds, collectively.
"Pledged Interests" means (a) with respect to each Domestic
Issuer, all of the Equity Interests identified as Pledged Interests of such
Domestic Issuer on Schedule A attached hereto (or any addendum thereto); and (b)
with respect to each Foreign Issuer, the Designated Number of Equity Interests
identified as Pledged Interests of such Foreign Issuer on Schedule A attached
hereto (or any addendum thereto).
"Pledgor" has the meaning set forth in the preamble to this
Agreement.
"Proceeds" means all proceeds (including proceeds of proceeds)
of the Pledged Interests and Future Rights including all: (a) rights, benefits,
distributions, premiums, profits, dividends, interest, cash, instruments,
documents of title, accounts, contract rights, inventory, equipment, general
intangibles, deposit accounts, chattel paper, and other property from time to
time received, receivable, or otherwise distributed in respect of or in exchange
for, or as a replacement of or a substitution for, any of the Pledged Interests,
Future Rights, or proceeds thereof (including any cash, Equity Interests, or
other securities or instruments issued after any recapitalization, readjustment,
reclassification, merger or consolidation with respect to the Issuers and any
security entitlements, as defined in the Code, with respect thereto); (b)
"proceeds," as such term is defined in the Code; (c) proceeds of any insurance,
indemnity, warranty, or guaranty (including guaranties of delivery) payable from
time to time with respect to any of the Pledged Interests, Future Rights, or
proceeds thereof; (d) payments (in any form whatsoever) made or due and payable
to Pledgor from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Pledged Interests,
Future Rights, or proceeds thereof; and (e) other amounts from time to time paid
or
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payable under or in connection with any of the Pledged Interests, Future Rights,
or proceeds thereof.
"SEC" means the United States Securities and Exchange
Commission and any successor thereto.
"Secured Obligations" means, with respect to Pledgor, all
liabilities, obligations (including the Guarantied Obligations (as defined in
the Guaranty)), or undertakings owing by Pledgor to Lender of any kind or
description arising out of or outstanding under, advanced or issued pursuant to,
or evidenced by the Guaranty, or any of the other Loan Documents, irrespective
of whether for the payment of money, whether direct or indirect, absolute or
contingent, due or to become due, voluntary or involuntary, whether now existing
or hereafter arising, and including all interest (including interest costs,
fees, and expenses that but for the provisions of the Bankruptcy Code, would
have accrued) and any and all other amounts which Pledgor is required to pay
pursuant to any of the foregoing, by law, or otherwise.
"Securities Act" has the meaning set forth in Section 9(c) of
this Agreement.
(b) Construction. Unless the context of this Agreement
clearly requires otherwise, references to the plural include the singular,
references to the singular include the plural, the term "including" is not
limiting, and the term "or" has, except where otherwise indicated, the inclusive
meaning represented by the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement.
Section, subsection, clause, schedule, and exhibit references herein are to this
Agreement unless otherwise specified. Any reference in this Agreement to any
agreement, instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions,
joinders, and supplements, thereto and thereof, as applicable (subject to any
restrictions on such alterations, amendments, changes, extensions,
modifications, renewals, replacements, substitutions, joinders, and supplements
set forth herein). Any reference herein to the repayment in full of the Secured
Obligations shall mean the repayment in full in cash of all Secured Obligations
other than (a) contingent indemnification Secured Obligations, (b) any Bank
Product Obligations that, at such time, are allowed by the applicable Bank
Product Provider to remain outstanding and are not required to be repaid or cash
collateralized pursuant to the provisions of this Agreement or any other Loan
Document, and (c) Secured Obligations in respect of Letters of Credit that have
been cash collateralized in an amount equal to 105% of the then extant Letter of
Credit Usage. Any reference herein to any Person shall be construed to include
such Person's successors and assigns. Any requirement of a writing contained
herein or in the other Loan Documents shall be satisfied by the transmission of
a Record and any Record transmitted shall constitute a representation and
warranty as to the accuracy and completeness of the information contained
therein. In the event of a direct conflict between the terms and provisions of
this Agreement and the Loan Agreement, it is the intention of the parties hereto
that both such documents shall be read together and construed, to the fullest
extent possible, to be in concert with each other. In the event of any actual,
irreconcilable conflict that cannot be resolved as aforesaid, the terms and
provisions of the Loan Agreement shall control and govern;
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provided, however, that the inclusion herein of additional obligations on the
part of Pledgor and supplemental rights and remedies in favor of Lender, in each
case in respect of the Collateral, shall not be deemed a conflict with the Loan
Agreement.
2. Pledge. Pledgor hereby pledges, grants, transfers, and assigns
to Lender, for the benefit of Lender and the Bank Product Providers, a security
interest in all of Pledgor's right, title, and interest in and to the Pledged
Collateral in order to secure prompt repayment of any and all of the Secured
Obligations in accordance with the terms and conditions of the Loan Documents to
which Pledgor is a party, and in order to secure prompt performance by Pledgor
of its covenants and duties under each Loan Document to which it is a party.
Anything contained in this Agreement or any other Loan Document to the contrary
notwithstanding, Pledgor has no authority, express or implied, to dispose of any
item or portion of the Pledged Collateral except in accordance with this
Agreement or the other Loan Documents.
3. Delivery and Registration of Pledged Collateral.
(a) All certificates or instruments representing or
evidencing the Pledged Collateral shall be promptly delivered by Pledgor to
Lender or Lender's designee pursuant hereto at a location designated by Lender
and shall be held by or on behalf of Lender pursuant hereto, and shall be in
suitable form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
reasonably satisfactory to Lender.
(b) Upon the occurrence and during the continuance of an
Event of Default, Lender shall have the right, at any time in its discretion and
without notice to Pledgor, to transfer to or to register on the books of the
Issuers (or of any other Person maintaining records with respect to the Pledged
Collateral) in the name of Lender or any of its nominees any or all of the
Pledged Collateral. In addition, Lender shall have the right at any time to
exchange certificates or instruments representing or evidencing Pledged
Collateral for certificates or instruments of smaller or larger denominations.
(c) If, at any time and from time to time, any Pledged
Collateral (including any certificate or instrument representing or evidencing
any Pledged Collateral) is in the possession of a Person other than Lender or
Pledgor (a "Holder"), then Pledgor shall promptly, at Lender's option, either
cause such Pledged Collateral to be delivered into Lender's possession, or
execute and deliver to such Holder a written notification/instruction, and take
all other steps necessary to perfect the security interest of Lender in such
Pledged Collateral, including obtaining from such Holder a written
acknowledgment that such Holder holds such Pledged Collateral for Lender, all
pursuant to the Code or other applicable law governing the perfection of
Lender's security interest in the Pledged Collateral in the possession of such
Holder. Each such notification/instruction and acknowledgment shall be in form
and substance reasonably satisfactory to Lender.
(d) Any and all Pledged Collateral (including dividends,
interest, and other cash distributions) at any time received or held by Pledgor
shall be so received or held in trust for
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Lender, shall be segregated from other funds and property of Pledgor and shall
be forthwith delivered to Lender in the same form as so received or held, with
any necessary endorsements; provided that cash dividends or distributions
received by Pledgor, if and to the extent they are not prohibited by the Loan
Agreement, may be retained by Pledgor in accordance with Section 4 and used (i)
in the ordinary course of Pledgor's business and (ii) to effectuate a Permitted
Share Repurchase.
(e) If at any time and from time to time any Pledged
Collateral consists of an uncertificated security or a security in book entry
form, then Pledgor shall promptly cause such Pledged Collateral to be registered
or entered, as the case may be, in the name of Lender, for the benefit of Lender
and the Bank Product Providers, or otherwise cause the security interest held by
Lender, for the benefit of Lender and the Bank Product Providers, to be
perfected in accordance with applicable law.
4. Voting Rights and Dividends.
(a) (i) So long as no Event of Default shall have
occurred and be continuing, or (ii) if an Event of Default has occurred and is
continuing and Pledgor has not received the written notice from Lender described
below in Section 4(b), Pledgor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of the Loan Documents
including, without limitation, the retention and use of cash dividends or
distributions permitted in Section 3(d) of this Agreement.
(b) Upon the occurrence and during the continuance of an
Event of Default, at the election of Lender in its Permitted Discretion, upon
the receipt by Pledgor of written notice of such election by Lender, all rights
of Pledgor to exercise the voting and other consensual rights or receive and
retain cash dividends or distributions that it would otherwise be entitled to
exercise or receive and retain, as applicable pursuant to Section 4(a), shall
cease, and all such rights shall thereupon become vested in Lender, who shall
thereupon have the sole right to exercise such voting or other consensual rights
and to receive and retain such cash dividends and distributions. Upon the
receipt of such written notice, Pledgor shall execute and deliver (or cause to
be executed and delivered) to Lender all such proxies and other instruments as
Lender may reasonably request for the purpose of enabling Lender to exercise the
voting and other rights which it is entitled to exercise and to receive the
dividends and distributions that it is entitled to receive and retain pursuant
to the preceding sentence. After all Events of Default have been cured or waived
pursuant to the terms of the Loan Documents, Pledgor shall have the right to
exercise the voting, consensual and other rights and powers that it would
otherwise be entitled to exercise pursuant to the terms of this Section 4.
5. Representations and Warranties. Pledgor represents, warrants,
and covenants as follows:
(a) Pledgor has taken all steps it deems necessary or
appropriate to be informed on a continuing basis of changes or potential changes
affecting the Pledged Collateral
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(including rights of conversion and exchange, rights to subscribe, payment of
dividends, reorganizations or recapitalization, tender offers and voting
rights), and Pledgor agrees that Lender and the Bank Product Providers shall not
have any responsibility or liability for informing Pledgor of any such changes
or potential changes or for taking any action or omitting to take any action
with respect thereto;
(b) All information herein or hereafter supplied to
Lender on behalf of Pledgor in writing with respect to the Pledged Collateral
is, or in the case of information hereafter supplied will be, to the best of the
knowledge of Pledgor, accurate and complete in all material respects;
(c) Pledgor is and will be the sole legal and beneficial
owner of the Pledged Collateral (including the Pledged Interests and all other
Pledged Collateral acquired by Pledgor after the date hereof) free and clear of
any adverse claim, Lien, or other right, title, or interest of any party, other
than Liens held by Lender, for the benefit of Lender and the Bank Product
Providers;
(d) This Agreement, and the delivery to Lender of the
Pledged Interests representing Pledged Collateral (or the delivery to all
Holders of the Pledged Interests representing Pledged Collateral of the
notification/instruction referred to in Section 3 of this Agreement), creates a
valid, perfected, and first priority security interest in one hundred percent
(100%) of the Pledged Interests which are in certificated form in favor of
Lender securing payment of the Secured Obligations, and all actions necessary to
achieve such perfection have been duly taken;
(e) Schedule A to this Agreement is true and correct and
complete in all material respects as of the date hereof; without limiting the
generality of the foregoing, as of the date hereof: (i) except as set forth in
Schedule A, all the Pledged Interests are in certificated form, and, except to
the extent registered in the name of Lender or its nominee pursuant to the
provisions of this Agreement, are registered in the name of Pledgor; and (ii)
the Pledged Interests as to each of the Issuers constitute at least the
percentage of all the fully diluted issued and outstanding Equity Interests of
such Issuer as set forth in Schedule A to this Agreement;
(f) The Pledged Interests that are interests in general
partnerships, limited partnerships or limited liability companies (i) are not
dealt in or traded on securities exchanges or in securities markets, (ii) do not
have terms expressly providing that they are securities governed by Article 8 of
the Code, and (iii) are not investment company securities, and are not,
therefore, "securities" governed by Article 8 of the Code;
(g) There are no presently existing Future Rights or
Proceeds owned by Pledgor as of the date hereof;
(h) The Pledged Interests have been duly authorized and
validly issued and are fully paid and nonassessable; and
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(i) Neither the pledge of the Pledged Collateral pursuant
to this Agreement nor the extensions of credit represented by the Secured
Obligations violates Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
6. Further Assurances.
(a) Pledgor agrees that from time to time, at its
expense, it will promptly execute and deliver all further instruments and
documents, and take all further action that may be necessary or reasonably
desirable, or that Lender, on behalf of itself and the Bank Product Providers,
may request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable Lender, on behalf of itself and the
Bank Product Providers, to exercise and enforce its rights and remedies
hereunder with respect to any Pledged Collateral. Without limiting the
generality of the foregoing, Pledgor will: (i) at the request of Lender, ▇▇▇▇
conspicuously each of its records pertaining to the Pledged Collateral with a
legend, in form and substance reasonably satisfactory to Lender, indicating that
such Pledged Collateral is subject to the security interest granted hereby; (ii)
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
reasonably desirable, or as Lender may reasonably request, in order to perfect
and preserve the security interests granted or purported to be granted hereby;
(iii) allow inspection of the Pledged Collateral by Lender or Persons designated
by Lender; and (iv) appear in and defend any action or proceeding that may
affect Pledgor's title to or Lender's security interest in the Pledged
Collateral.
(b) Pledgor hereby authorizes Lender, on behalf of Lender
and the Bank Product Providers, to file one or more financing or continuation
statements, and amendments thereto, relative to all or any part of the Pledged
Collateral without Pledgor's signature where permitted by law. A carbon,
photographic, or other reproduction of this Agreement or any financing statement
covering the Pledged Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law.
(c) Pledgor will furnish to Lender, upon the request of
Lender: (i) a certificate executed by an authorized officer of Pledgor, and
dated as of the date of delivery to Lender, itemizing in such detail as Lender
may request, the Pledged Collateral which, as of the date of such certificate,
has been delivered to Lender by Pledgor pursuant to the provisions of this
Agreement; and (ii) such statements and schedules further identifying and
describing the Pledged Collateral and such other reports in connection with the
Pledged Collateral as Lender may request.
7. Covenants of Pledgor. Pledgor shall:
(a) Perform each and every covenant in the Loan Documents
applicable to Pledgor;
(b) At all times keep at least one complete set of its
records concerning substantially all of the Pledged Collateral at its Chief
Executive Office as set forth in Schedule B
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hereto, and not change the location of its Chief Executive Office or such
records without giving Lender at least thirty (30) days prior written notice
thereof;
(c) To the extent it may lawfully do so, use its best
efforts to prevent the Issuers from issuing Future Rights or Proceeds, except
for cash dividends and other distributions, if any, that are not prohibited by
the terms of the Loan Agreement to be paid by any Issuer to Pledgor;
(d) Upon receipt by Pledgor of any material notice,
report, or other communication from any of the Issuers or any Holder relating to
all or any part of the Pledged Collateral, deliver such notice, report or other
communication to Lender promptly, but in no event later than five (5) days
following the receipt thereof by Pledgor; and
(e) To the extent it may lawfully do so, (1) with respect
to its Subsidiaries, not permit, and (2) with respect to all other Issuers, use
commercially reasonable efforts to prevent such entities from: (i) authorizing
the amendment of or amending the Governing Documents of any Issuer that is a
general partnership, limited partnership or limited liability company to provide
that the Stock of such Issuer is governed by Article 8 of the Code, or (ii)
authorizing the issuance of or issuing certificates evidencing the Stock of any
Issuer that is a general partnership, limited partnership or limited liability
company.
8. Lender as Pledgor's Attorney-in-Fact.
(a) Pledgor hereby irrevocably appoints Lender, on behalf
of itself and the Bank Product Providers, as Pledgor's attorney-in-fact, with
full authority in the place and stead of Pledgor and in the name of Pledgor,
Lender or otherwise, from time to time at Lender's discretion, to take any
action and to execute any instrument that Lender, on behalf of itself and the
Bank Product Providers, may reasonably deem necessary or advisable to accomplish
the purposes of this Agreement, including: (i) upon the occurrence and during
the continuance of an Event of Default, to receive, endorse, and collect all
instruments made payable to Pledgor representing any dividend, interest payment
or other distribution in respect of the Pledged Collateral or any part thereof
to the extent permitted hereunder and to give full discharge for the same and to
execute and file governmental notifications and reporting forms; (ii) to issue
any notifications/instructions Lender deems necessary pursuant to Section 3 of
this Agreement; or (iii) to arrange for the transfer of the Pledged Collateral
on the books of any of the Issuers or any other Person to the name of Lender or
to the name of Lender's nominee.
(b) In addition to the designation of Lender as Pledgor's
attorney-in-fact in subsection (a), Pledgor hereby irrevocably appoints Lender,
on behalf of itself and the Bank Product Providers, as Pledgor's agent and
attorney-in-fact to make, execute and deliver any and all documents and writings
that may be necessary or appropriate for approval of, or be required by, any
regulatory authority located in any city, county, state or country where Pledgor
or any of the Issuers engage in business, in order to transfer or to more
effectively transfer any of the Pledged Interests or otherwise enforce the
rights granted hereunder to Lender or the Bank Product Providers.
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9. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default:
(a) Lender, on behalf of itself and the Bank Product
Providers, may exercise in respect of the Pledged Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the Code
(irrespective of whether the Code applies to the affected items of Pledged
Collateral), and Lender, on behalf of itself and the Bank Product Providers, may
also without notice (except as specified below and subject to applicable law)
sell the Pledged Collateral or any part thereof in one or more parcels at public
or private sale, at any exchange, broker's board or at any of Lender's offices
or elsewhere, for cash, on credit or for future delivery, at such time or times
and at such price or prices and upon such other terms as Lender may deem
commercially reasonable, irrespective of the impact of any such sales on the
market price of the Pledged Collateral. To the maximum extent permitted by
applicable law, Lender may be the purchaser of any or all of the Pledged
Collateral at any such sale and shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of
the Pledged Collateral sold at any such public sale, to use and apply all or any
part of the Secured Obligations as a credit on account of the purchase price of
any Pledged Collateral payable at such sale. Each purchaser at any such sale
shall hold the property sold absolutely free from any claim or right on the part
of Pledgor, and Pledgor hereby waives (to the extent permitted by law) all
rights of redemption, stay, or appraisal that it now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted. Pledgor agrees that, to the extent notice of sale shall be required by
law, at least ten (10) calendar days notice to Pledgor of the time and place of
any public sale or the time after which a private sale is to be made shall
constitute reasonable notification. Lender shall not be obligated to make any
sale of Pledged Collateral regardless of notice of sale having been given.
Lender may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned. To the maximum
extent permitted by law, Pledgor hereby waives any claims against Lender arising
because the price at which any Pledged Collateral may have been sold at such a
private sale was less than the price that might have been obtained at a public
sale, even if Lender accepts the first offer received and does not offer such
Pledged Collateral to more than one offeree.
(b) Pledgor hereby agrees that any sale or other
disposition of the Pledged Collateral conducted in conformity with reasonable
commercial practices of banks, insurance companies, or other financial
institutions in the City of Los Angeles, State of California in disposing of
property similar to the Pledged Collateral shall be deemed to be commercially
reasonable.
(c) Pledgor hereby acknowledges that the sale by Lender
of any Pledged Collateral pursuant to the terms hereof in compliance with the
Securities Act of 1933 as now in effect or as hereafter amended, or any similar
statute hereafter adopted with similar purpose or effect (the "Securities Act"),
as well as applicable "Blue Sky" or other state securities laws may require
strict limitations as to the manner in which Lender or any subsequent transferee
of the Pledged Collateral may dispose thereof. Pledgor acknowledges and agrees
that in order to
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protect Lender's interest it may be necessary to sell the Pledged Collateral at
a price less than the maximum price attainable if a sale were delayed or were
made in another manner, such as a public offering under the Securities Act.
Pledgor has no objection to sale in such a manner and agrees that Lender shall
have no obligation to obtain the maximum possible price for the Pledged
Collateral. Without limiting the generality of the foregoing, Pledgor agrees
that, upon the occurrence and during the continuation of an Event of Default,
Lender may, subject to applicable law, from time to time attempt to sell all or
any part of the Pledged Collateral by a private placement, restricting the
bidders and prospective purchasers to those who will represent and agree that
they are purchasing for investment only and not for distribution. In so doing,
Lender may solicit offers to buy the Pledged Collateral or any part thereof for
cash, from a limited number of investors deemed by Lender, in its reasonable
judgment, to be institutional investors or other responsible parties who might
be interested in purchasing the Pledged Collateral. If Lender shall solicit such
offers, then the acceptance by Lender of one of the offers shall be deemed to be
a commercially reasonable method of disposition of the Pledged Collateral.
(d) If Lender shall determine to exercise its right to
sell all or any portion of the Collateral pursuant to this Section, Pledgor
agrees that, upon request of Lender, Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver,
and cause the Issuers and the directors and officers thereof to execute and
deliver, all such instruments and documents, and to do or cause to be done all
such other acts and things, as may be necessary or, in the opinion of Lender,
advisable to register such Collateral under the provisions of the Securities
Act, and to cause the registration statement relating thereto to become
effective and to remain effective for such period as prospectuses are required
by law to be furnished, and to make all amendments and supplements thereto and
to the related prospectuses which, in the opinion of Lender, are necessary or
advisable, all in conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission applicable
thereto;
(ii) use its best efforts to qualify the
Collateral under the state securities laws or "Blue Sky" laws and to obtain all
necessary governmental approvals for the sale of the Collateral, as requested by
Lender;
(iii) cause the Issuers to make available to their
respective security holders, as soon as practicable, an earnings statement which
will satisfy the provisions of Section 11(a) of the Securities Act;
(iv) execute and deliver, or cause the officers
and directors of the Issuers to execute and deliver, to any person, entity or
governmental authority as Lender may choose, any and all documents and writings
which, in Lender's reasonable judgment, may be necessary or appropriate for
approval, or be required by, any regulatory authority located in any city,
county, state or country where Pledgor or the Issuers engage in business, in
order to transfer or to more effectively transfer the Pledged Interests or
otherwise enforce Lender's rights hereunder; and
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Execution Version
(v) do or cause to be done all such other acts
and things as may be necessary to make such sale of the Collateral or any part
thereof valid and binding and in compliance with applicable law.
Pledgor acknowledges that there is no adequate remedy at law for failure by it
to comply with the provisions of this Section and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section may be specifically enforced.
(e) PLEDGOR EXPRESSLY WAIVES TO THE MAXIMUM EXTENT
PERMITTED BY LAW: (i) ANY CONSTITUTIONAL OR OTHER RIGHT TO A JUDICIAL HEARING
PRIOR TO THE TIME LENDER DISPOSES OF ALL OR ANY PART OF THE COLLATERAL AS
PROVIDED IN THIS SECTION; (ii) ALL RIGHTS OF REDEMPTION, STAY, OR APPRAISAL THAT
IT NOW HAS OR MAY AT ANY TIME IN THE FUTURE HAVE UNDER ANY RULE OF LAW OR
STATUTE NOW EXISTING OR HEREAFTER ENACTED; AND (iii) EXCEPT AS SET FORTH IN
SUBSECTION (a) OF THIS SECTION, ANY REQUIREMENT OF NOTICE, DEMAND, OR
ADVERTISEMENT FOR SALE.
10. Application of Proceeds. Upon the occurrence and during the
continuance of an Event of Default, any cash held by Lender as Pledged
Collateral and all cash proceeds received by Lender in respect of any sale of,
collection from, or other realization upon all or any part of the Pledged
Collateral pursuant to the exercise by Lender of its remedies as a secured
creditor as provided in Section 9 shall be applied from time to time by Lender
as provided in the Loan Agreement.
11. Duties of Lender. The powers conferred on Lender hereunder are
solely to protect its interests in the Pledged Collateral and shall not impose
on it any duty to exercise such powers. Except as provided in Section 9-207 of
the Code, Lender shall have no duty with respect to the Pledged Collateral or
any responsibility for taking any necessary steps to preserve rights against any
Persons with respect to any Pledged Collateral.
12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
(a) THE VALIDITY OF THIS AGREEMENT, THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF; AND THE RIGHTS OF THE PARTIES HERETO
WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE
DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.
(b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS
ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN
THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, PROVIDED,
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HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PLEDGED COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT LENDER'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE LENDER ELECTS TO BRING SUCH ACTION OR WHERE SUCH PLEDGED
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. PLEDGOR AND LENDER WAIVE, TO THE
EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 12(b).
(c) PLEDGOR AND LENDER HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS. PLEDGOR AND LENDER REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A
COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
13. Amendments. This Agreement can only be amended by a writing
signed by Pledgor and Lender.
14. Notices. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and shall be delivered in the manner set forth in the Loan Agreement.
15. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall: (i) remain in
full force and effect until the indefeasible payment in full in cash of the
Secured Obligations, including the cash collateralization, expiration, or
cancellation of all Secured Obligations, if any, consisting of letters of
credit, and the full and final termination of any commitment to extend any
financial accommodations under the Loan Agreement; (ii) be binding upon Pledgor
and its successors and assigns; and (iii) inure to the benefit of Lender and its
successors, transferees, and assigns. Upon the indefeasible payment in full in
cash of the Secured Obligations, including the cash collateralization,
expiration, or cancellation of all Secured Obligations, if any, consisting of
letters of credit, and the full and final termination of any commitment to
extend any financial accommodations under the Loan Agreement, the security
interests granted herein shall automatically terminate and all rights to the
Pledged Collateral shall revert to Pledgor. Upon any such termination, Lender
will, at Pledgor's expense, execute and deliver to Pledgor such documents as
Pledgor shall reasonably request to evidence such termination. Such documents
shall be prepared by Pledgor and shall be in form and substance reasonably
satisfactory to Lender.
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16. Security Interest Absolute. To the maximum extent permitted by
law, all rights of Lender, all security interests hereunder, and all obligations
of Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any of the
Secured Obligations or any other agreement or instrument relating thereto,
including any of the Loan Documents;
(b) any change in the time, manner, or place of payment
of, or in any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from any of the Loan
Documents, or any other agreement or instrument relating thereto;
(c) any exchange, release, or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to departure
from any guaranty for all or any of the Secured Obligations; or
(d) any other circumstances that might otherwise
constitute a defense available to, or a discharge of, Pledgor.
To the maximum extent permitted by law, Pledgor hereby waives any right to
require Lender to: (A) proceed against or exhaust any security held from
Pledgor; or (B) pursue any other remedy in Lender's power whatsoever.
17. Section Headings. Headings and numbers have been set forth
herein for convenience only. Unless the contrary is compelled by the context,
everything contained in each Section applies equally to this entire Agreement.
18. Severability of Provisions. Each provision of this Agreement
shall be severable from every other provision of this Agreement for the purpose
of determining the legal enforceability of any specific provision.
19. Counterparts; Telefacsimile Execution. This Agreement may be
executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, shall be deemed to be
an original, and all of which, when taken together, shall constitute but one and
the same Agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Agreement. Any party delivering an executed counterpart of
this Agreement by telefacsimile also shall deliver an original executed
counterpart of this Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement.
20. Waiver of Marshaling. Pledgor and Lender acknowledge and agree
that in exercising any rights under or with respect to the Pledged Collateral:
(i) Lender is under no obligation to marshal any Pledged Collateral; (ii) Lender
may, in its absolute discretion, realize upon the Pledged Collateral in any
order and in any manner it so elects; and (iii) Lender may, in its absolute
discretion, apply the proceeds of any or all of the Pledged Collateral to the
Secured
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Execution Version
Obligations in any order and in any manner it so elects. Pledgor and Lender
waive any right to require the marshaling of any of the Pledged Collateral.
21. Interpretation. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed against Lender or Pledgor, whether under any
rule of construction or otherwise. On the contrary, this Agreement has been
reviewed by all parties and shall be construed and interpreted according to the
ordinary meaning of the words used so as to accomplish fairly the purposes and
intentions of all parties hereto.
22. Remedies Cumulative. Lender's rights and remedies under this
Agreement, the other Loan Documents, and all other agreements shall be
cumulative. Lender shall have all other rights and remedies not inconsistent
herewith as provided under the Code, by law, or in equity. No exercise by Lender
of one right or remedy shall be deemed an election, and no waiver by Lender of
any Event of Default on Pledgor's part shall be deemed a continuing waiver. No
delay by Lender shall constitute a waiver, election, or acquiescence by it.
[Signature page to follow.]
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Execution Version
IN WITNESS WHEREOF, Pledgor and Lender have caused this
Agreement to be duly executed and delivered as of the date first written above.
SHOE PAVILION, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President, CFO
----------------------------------
▇▇▇▇▇ FARGO RETAIL FINANCE, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President
----------------------------------
[SIGNATURE PAGE TO STOCK PLEDGE AGREEMENT (BORROWER)]
S-1
Execution Version
SCHEDULE A
TO
STOCK PLEDGE AGREEMENT
Pledgor: Shoe Pavilion Inc.
Pledged Interests
FORMER NAME, IF
ANY, IN WHICH PLEDGOR'S
NUMBER CERTIFICATE CERTIFICATE PERCENTAGE JURISDICTION OF CERTIFICATED/
ISSUER OF SHARES CLASS NUMBER(S) ISSUED OWNERSHIP ORGANIZATION UNCERTIFICATED
------- --------- ------- ----------- --------------- ---------- --------------- --------------
A-1
Execution Version
SCHEDULE B
TO
STOCK PLEDGE AGREEMENT
Pledgor: Shoe Pavilion, Inc.
Address of Chief Executive Office: