EXHIBIT 10.05
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "PLEDGE"), dated as of August 20, 2001 (but
effective as of August 15, 2001), by S2 HOLDINGS, INC., a Delaware corporation
("PLEDGOR"), for the benefit of X.X. XXXXXXXXX S.S.C. LIMITED PARTNERSHIP, a
Nevada limited partnership ("PLEDGEE").
RECITALS
WHEREAS, Pledgor, Pledgee and certain other parties have entered into a
certain Purchase Agreement, effective as of August 15, 2001 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement, Pledgor has agreed to
execute and deliver two promissory notes, each dated the date hereof, in favor
of Pledgee (as the same may be replaced, increased, renewed, amended, restated,
supplemented or otherwise modified from time to time, the "Notes");
WHEREAS, it is a condition precedent to the sale of the Class B Interest
(as defined in the Purchase Agreement) to Pledgor that Pledgor shall have
executed and delivered this Pledge in order to grant the security interest
contemplated hereby;
NOW, THEREFORE, in consideration of the promises set forth therein and
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Pledgor, intending to be legally
bound, agrees as follows:
1. DEFINITIONS. For purposes of this Pledge,
1.1 "AFFILIATE" means, with reference to any specified Person,
any other Person controlling or controlled by or under common control with such
specified Person; PROVIDED, that for purposes of this Agreement when used with
respect to DVL, Inc. or any of its direct or indirect subsidiaries or
Affiliates, any directors of such Persons shall also be deemed "Affiliates" of
any such Person. For the purposes of this definition, "control" when used with
reference to any specified Person means the power to direct the management and
policies of such specified Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
1.2 "AFFILIATED ENTITY" shall have the meaning ascribed to such
term in SECTION 8.8.
1.3 "CODE" means the Uniform Commercial Code as adopted by the
State of Delaware, as the same may be amended from time to time.
1.4 "COLLATERAL" means (i) the LLC Interest, (ii) all
distributions, cash, securities, certificates and property issued, paid,
declared and/or made (or to be issued, paid, declared and/or made) in connection
with the LLC Interest, or any portion thereof, (iii) all cash, securities,
certificates and other property paid, issued and/or distributed (or to be paid,
issued and/or distributed) to or for the benefit of Pledgor in exchange,
redemption or substitution for the LLC Interest, or any portion thereof, (v) all
other cash, securities and property paid, issued and/or distributed (or to be
paid, issued and/or distributed) to or for the benefit of Pledgor as a
consequence of Pledgor's ownership of the LLC Interest, or any portion thereof,
and (vi) all proceeds of the foregoing.
1.5 "EVENT OF DEFAULT" means any and all events described in
SECTION 10.
1.6 "INDEBTEDNESS" means all obligations and indebtedness of
Pledgor to Pledgee under the Notes, all obligations of Pledgor to reimburse
Pledgee for payments made by Pledgee at any time or from time to time for the
preservation and/or protection of the Collateral, and all obligations or
undertakings under Section 10 of the Purchase Agreement including, without
limitation, all obligations of Pledgor under this Pledge or otherwise to
immediately pay to Pledgee all interest and other sums payable in connection
with any of the foregoing. For the avoidance of doubt, the term "Indebtedness"
shall not include Indebtedness (as defined in the Pledge Agreement, dated April
27, 2001, made by Pledgor in favor of Pledgee (the "April 2001 Pledge
Agreement")).
1.7 "ISSUER", "PROCEEDS" and "SECURITY" shall have the meanings
given such terms in the Code.
1.8 "LLC INTEREST" means Pledgor's entire Class B Interest in
Receivables II-B LLC (THE "LLC"), a Nevada limited liability company (being a
ninety-nine and nine-tenths percent (99.9%) equity interest in the LLC),
including, without limitation, all rights in, and claims to, any and all
profits, losses, distributions and other benefits of any nature relating to such
interest under the Nevada Limited Liability Company Act, as amended, and the
LLC's Articles of Organization and Operating Agreement, each as amended (as so
amended, the "Operating Documents") including, without limitation, all of
Pledgor's right, title and interest in and to the LLC.
1.9 "NOTES" shall have the meaning ascribed to such term in the
Recitals.
1.10 "PERSON" means any individual, corporation, partnership,
joint venture, limited liability company association, joint-stock company,
trust, unincorporated organization, Governmental Authority or any other entity
of similar nature.
1.11 "PERMITTED ENCUMBRANCES" means:
(a) liens imposed by law for taxes that are not yet due
or are being contested in good faith by appropriate proceedings provided that
(i) adequate reserves with respect thereto are maintained by Pledgor in
accordance with generally accepted accounting principles, (ii) such contest
shall suspend the collection thereof, and (iii) neither all nor any part of the
Collateral would be in danger of being sold, forfeited or lost;
(b) carriers', warehousemen's, mechanics', repairmen's
and other like liens imposed by law, arising in the ordinary course of business
that are not overdue for a period of more than thirty (30) days or that are
being contested in good faith and by appropriate proceedings provided that (i)
such contest shall suspend the collection thereof, and (ii) neither all nor any
part of the Collateral would be in danger of being sold, forfeited or lost;
(c) pledges or deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business; and
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(e) easements, zoning restrictions rights-of-way and
similar encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure monetary obligations and do not materially
detract from the value of the property subject thereto or interfere with the
ordinary conduct of the business of the Pledgor;
PROVIDED that the term "Permitted Encumbrances" shall not include any lien
securing any indebtedness.
2. SECURITY INTEREST. Pledgor hereby pledges and grants to Pledgee a
first priority security interest in, pledge of and a lien, on the Collateral.
3. EFFECT OF GRANT. The security interest, pledge and lien on the
Collateral granted to Pledgee by Pledgor hereunder shall not be rendered void by
the fact that no Indebtedness exists as of a particular date, but shall continue
in full force and effect until (i) all Indebtedness has been paid in full, (ii)
Pledgee has no agreement or commitment outstanding pursuant to which Pledgee may
extend credit to or on behalf of Pledgor and (iii) Pledgee has executed and
delivered termination statements and/or releases and has delivered the
Collateral to Pledgor.
4. OBLIGATIONS SECURED. The Collateral and the continuing security
interest granted therein shall secure all Indebtedness. IT IS THE EXPRESS
INTENTION OF PLEDGOR THAT THE COLLATERAL SHALL SECURE ALL PLEDGOR'S EXISTING AND
FUTURE OBLIGATIONS TO PLEDGEE AND ANY AND ALL PERMITTED SUCCESSORS AND ASSIGNS
OF PLEDGEE UNDER THE NOTES, OR OTHERWISE (OTHER THAN THE OBLIGATIONS OF PLEDGOR
TO PLEDGEE SECURED PURSUANT TO THE APRIL 2001 PLEDGE AGREEMENT). FOR THE
AVOIDANCE OF DOUBT, IT IS UNDERSTOOD AND AGREED THAT THE COLLATERAL (AS DEFINED
IN THE APRIL 2001 PLEDGE AGREEMENT) SHALL NOT SECURE THE OBLIGATIONS OF PLEDGOR
TO PLEDGEE SECURED PURSUANT THIS PLEDGE AGREEMENT.
5. DELIVERY. All original certificates and instruments, if any,
representing or evidencing the Collateral, or any portion thereof, shall be
delivered to and held by or on behalf of Pledgee pursuant hereto and shall be in
suitable form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignments in blank, all in form and substance
satisfactory to Pledgee and with guaranteed signature(s).
6. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and
warrants as follows, which representations and warranties shall be true and
correct as of the date hereof, at the time of the creation of any Indebtedness
and until the Indebtedness has been paid in full:
6.1 TITLE TO COLLATERAL. The Collateral is and will be owned by
Pledgor, free and clear of all liens and other encumbrances of any kind
(including liens or other encumbrances upon properties acquired or to be
acquired under conditional sales agreements or other title retention devices),
excepting only liens in favor of Pledgee and the Permitted Encumbrances. Pledgor
will defend the Collateral against any claims of all persons or entities other
than Pledgee.
6.2 DUE AUTHORIZATION AND ISSUANCE. The Collateral consisting
of certificates, if any, has been duly authorized and issued to or for the
benefit of Pledgor by the respective issuer and is outstanding, fully paid and
non-assessable. The LLC Interest is not presently evidenced by a certificate or
certificates.
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6.3. NO VIOLATION. The execution, delivery and performance by
Pledgor of this Pledge and the Notes will not violate or constitute a default
under any indenture, note, loan, credit agreement or any other document or
instrument to which Pledgor is a party or by which Pledgor is bound, or any
judgment or order of any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign.
6.4 GOVERNMENTAL CONSENTS. No consent, approval or
authorization of or designation, declaration or filing with any governmental
authority by Pledgor is required in connection with the execution, delivery or
performance by Pledgor of this Pledge or the consummation of the transactions
contemplated hereby.
6.5 PENDING LITIGATION OR PROCEEDINGS. There are no judgments
outstanding or actions, suits or proceedings pending or, to the best of
Pledgor's knowledge, threatened against or affecting Pledgor or the Collateral,
or any portion thereof, at law or in equity or before or by any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
6.6 TAXES. Pledgor has filed all tax returns which Pledgor is
required to file and has paid, or made provision for the payment of, all taxes
which have or may have become due pursuant to such returns or pursuant to any
assessment received by Pledgor except such taxes, if any, as are being contested
in good faith and as to which adequate reserves have been provided. Such tax
returns are complete and accurate in all respects. Pledgor does not know of any
proposed additional assessment or basis for any assessment of additional taxes.
6.7 ACCURACY OF REPRESENTATIONS AND WARRANTIES. No
representation or warranty by Pledgor contained herein or in any certificate or
other document furnished by Pledgor pursuant hereto or in connection herewith
fails to contain any statement of material fact necessary to make such
representation or warranty not misleading in light of the circumstances under
which it was made. There is no fact which Pledgor knows or should know and has
not disclosed to Pledgee, which does or may materially and adversely affect
Pledgor, or the Collateral, or any portion thereof.
6.8 PURCHASE AGREEMENT REPRESENTATIONS AND WARRANTIES. The
representations or warranties by Pledgor contained in the Purchase Agreement are
true and correct.
6.9 CHIEF EXECUTIVE OFFICE. Pledgor's chief executive office is
located at 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000.
7. COVENANTS. Pledgor covenants and agrees that until the
Indebtedness has been paid in full, Pledgor shall:
7.1 PAYMENT OF OBLIGATIONS. Pay, or cause to be paid, when due
all amounts of Indebtedness payable by Pledgor to Pledgee.
7.2 SALE OF COLLATERAL. Not sell, lease, transfer, assign or
otherwise dispose of the Collateral (or any portion thereof or interest
therein), directly or indirectly.
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7.3 CREATION OF LIENS. Not create, incur or permit to exist any
mortgage, pledge, encumbrance, lien, security interest or charge of any kind on
the Collateral (or any portion thereof or interest therein), except as
contemplated hereby and the Permitted Encumbrances.
7.4 ADDITIONAL DOCUMENTS AND FUTURE ACTIONS. Pledgor will, at
its sole cost, take such actions and provide Pledgee from time to time with such
agreements, financing statements and additional instruments, documents or
information as Pledgee may in its reasonable discretion deem necessary or
advisable to perfect, protect and maintain the security interests in the
Collateral, or any portion thereof, to permit Pledgee to protect its interest in
the Collateral, or any portion thereof, or to carry out the terms of this Pledge
and the Notes. Pledgor hereby authorizes and appoints Pledgee as its
attorney-in-fact, with full power of substitution, to take such actions as
Pledgee may reasonably deem advisable to protect the Collateral and its
interests thereon and its rights hereunder, to execute on Pledgor's behalf and
file at Pledgor's expense financing statements, and amendments thereto, in those
public offices reasonably deemed necessary or appropriate by Pledgee to
establish, maintain and protect a continuously perfected security interest in
the Collateral, including, without limitation, to receive, endorse and collect
all certificates, instruments and securities made payable to or issued to
Pledgor representing any dividend, interest, or other distribution in respect of
the Collateral, or any portion thereof, and to execute on Pledgor's behalf such
other documents and notices as Pledgee may reasonably deem advisable to protect
the Collateral and Pledgee's interests therein and Pledgee's rights hereunder.
Such power, being coupled with an interest, is irrevocable. Pledgor irrevocably
authorizes the filing of a carbon, photographic or other copy of this Agreement,
or of a financing statement, as a financing statement and agrees that such
filing is sufficient as a financing statement.
7.5 REQUESTED INFORMATION. With reasonable promptness, deliver
to Pledgee all such other data and information in respect of the financial
condition and affairs of Pledgor and the value of the Collateral, as Pledgee may
reasonably request from time to time.
8. ADDITIONAL AFFIRMATIVE COVENANTS. So long as any Indebtedness
shall remain unpaid, Pledgor will, unless Pledgee shall otherwise consent in
writing:
8.1 COMPLIANCE WITH LAW. Comply in all material respects with
all applicable laws, rules, regulations and orders applicable to Pledgor, its
business and properties and the Collateral, such compliance to include, without
limitation, paying before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its property, except to the extent
contested in good faith provided that (i) adequate reserves with respect thereto
are maintained by Pledgor in accordance with generally accepted accounting
principles, (ii) such contest shall suspend the collection thereof, and (iii)
neither all nor any part of the Collateral would be in danger of being sold,
forfeited or lost.
8.2 REPORTING REQUIREMENTS. Furnish to Pledgee a copy of all
material accounts, books, records and other information respecting the business,
condition or operations, financial or otherwise, of Pledgor as Pledgee may from
time to time reasonably request.
8.3 EXISTENCE AND RIGHTS. Preserve and keep in full force and
effect its existence, rights, permits, patents, franchises, licenses, trademarks
and trade names and obtain and preserve its qualification to do business as a
foreign entity in each jurisdiction in which such qualification is or shall be
necessary to protect the Collateral and the validity and enforceability of this
Pledge.
8.4 BOOKS AND RECORDS. Maintain proper and complete financial
and accounting books and records.
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8.5 PERFORMANCE AND COMPLIANCE WITH MATERIAL AGREEMENTS.
Perform and comply with each of the provisions of all material agreements to
which it is a party, or is otherwise bound or affected, other than the Buyer
Transaction Documents, as defined in the Purchase Agreement (as defined, in
turn, in the April 2001 Pledge Agreement).
8.6 LITIGATION. Give prompt notice to Pledgee of all litigation
or proceedings affecting Pledgor and/or the Collateral.
8.7 CHANGE OF BUSINESS LOCATION. Notify Pledgee at least thirty
(30) days in advance of (a) any change in the location of the principal place of
business and chief executive office of Pledgor, and the office where Pledgor
keeps its records, (b) the establishment of any new, or the discontinuance of
any existing, place of business, or (c) any change to its name or of the use of
any tradenames, fictitious names, assumed names or "doing business as" names,
and, in each case, execute, deliver, and file (and, if necessary, pay related
filing fees and taxes) all such documents as may be necessary or advisable in
the opinion of Pledgee and Pledgee's legal counsel to continue to perfect and
protect the liens of Pledgee in the Collateral (including, without limitation,
UCC financing statements). Notwithstanding anything contained herein to the
contrary, Pledgor may not move its principal place of business to a location
outside of the United States.
8.8 MAINTENANCE OF SEPARATE MEMBER. Pledgor will maintain at
least one (1) independent director, not otherwise (and has not at any time
during the last five years otherwise been) an officer, director, employee,
shareholder, partner, holder of any interest, creditor, trustee, liquidator,
member, manager, conservator or receiver of or for DVL, Inc., any Affiliate of
DVL, Inc. (including any direct or indirect subsidiary of DVL, Inc.), or any
other Affiliate of Pledgor (unless so acting in a similar independent role), or
any relative or related entity of any of the foregoing (DVL, Inc., such
Affiliates and such relatives and related entities being defined herein
individually as an "Affiliated Entity" and collectively as "Affiliated
Entities"), and is otherwise acceptable to Pledgee.
8.9 MAINTENANCE OF SEPARATE EXISTENCE. Pledgor shall take all
reasonable steps to continue its identity as a separate legal entity and to make
it apparent to all Persons that its assets and liabilities are distinct from
those of each of the Affiliated Entities or any other Person, and that it is not
a division of any of the Affiliated Entities or any other Person. In that
regard, and without limiting the foregoing in any manner, Pledgor shall:
(a) maintain its existence and make independent
decisions with respect to its daily operations and business affairs;
(b) maintain separate and clearly delineated office
space owned by it or evidenced by a written lease or sublease (even if located
in an office owned or leased by, or shared with, another Affiliated Entity);
(c) maintain its assets in a manner which facilitates
their identification and segregation from those of any of the Affiliated
Entities;
(d) maintain a separate telephone number which will be
answered only in its own name and separate stationery and other business forms;
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(e) conduct all intercompany transactions with the
Affiliated Entities on an arm's-length basis;
(f) not guarantee any obligation of any of the
Affiliated Entities, nor have any of its obligations guaranteed by any
Affiliated Entity, except as provided in the Guaranty (as defined in the
Purchase Agreement) or the Guaranty, dated April 27, 2001, made by DVL, Inc., in
favor of Pledgee, or hold itself out as responsible for the debts of any
Affiliated Entity or for the decisions or actions with respect to the business
and affairs of any Affiliated Entity, nor seek or obtain credit or incur any
obligation to any third-party based upon the creditworthiness or assets of any
Affiliated Entity, or any other Person;
(g) not permit the commingling or pooling of its funds
or other assets with the assets of any Affiliated Entity;
(h) maintain separate deposit and other bank accounts to
which no Affiliated Entity has any access;
(i) maintain financial records which are separate from
those of the Affiliated Entities;
(j) compensate (either directly or through reimbursement
of allocable share of any shared expenses) all employees, consultants and
agents, and Affiliated Entities, to the extent applicable, for services provided
to Pledgor by such employees, consultants and agents or Affiliated Entities, in
each case, from Pledgor's own funds;
(k) have agreed with each of the relevant Affiliated
Entities to allocate among themselves shared overhead and corporate operating
services and expenses (including, without limitation, the services of shared
employees, consultants and agents and reasonable legal and auditing expenses) on
the basis of actual use or the value of services rendered, and otherwise on a
basis reasonably related to actual use or the value of services rendered;
(l) pay for its own account for accounting and payroll
services, rent, lease and other expenses (or its allocable share of any such
amounts provided by one or more Affiliated Entity) and not have such operating
expenses (or Pledgor's allocable share thereof) paid by any of the Affiliated
Entities, provided, that DVL, Inc. shall be permitted to pay the initial
organizational expenses of Pledgor;
(m) maintain adequate capitalization in light of its
business and purpose;
(n) conduct all of its business (whether in writing or
orally) solely in its own name through its duly authorized officers, employees
and agents;
(o) not make or declare any dividends or other
distributions of cash or property to the holders of its equity securities or
make redemptions or repurchases of its equity securities, in either case, on a
periodic basis any more frequently than monthly or otherwise, in certain other
irregular cases, in accordance with appropriate legal formalities and consistent
with sound business judgment; and all such distributions, redemptions or
repurchases shall only be permitted hereunder to the extent that it is not
violative of any applicable law and that no Event of Default then exists or
would result therefrom;
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(p) maintain at least one employee (which employee may
be shared with an Affiliate pursuant to a written agreement allocating the
compensation and other remuneration and benefits for such employee as among such
parties) in charge of day-to-day operations of Pledgor; and
(q) otherwise practice and adhere to legal formalities
such as complying with its constitutive documents and member and director
resolutions, the holding of regularly scheduled meetings of shareholders and
directors, and maintaining complete and correct books and records and minutes of
meetings and other proceedings of its shareholders and directors.
9. ADDITIONAL NEGATIVE COVENANTS. So long as any Indebtedness shall
remain unpaid Pledgor will not, without the written consent of Pledgee:
9.1 BUSINESS ACTIVITIES. Conduct any business other than as
contemplated in its charter.
9.2 LIABILITIES. Create, incur, assume or suffer to exist any
liabilities, indebtedness and/or obligations (contingent or otherwise including,
without limitation, by way of guarantee, suretyship or endorsement (other than
endorsements of negotiable instruments for deposit or collection in the ordinary
course of business)), except in favor of Pledgee.
9.3 LOANS AND ADVANCES. Make, or suffer to exist, any loans or
advances to, or extend credit to, any Person.
9.4 DIVIDENDS. ETC. If any Event of Default shall have occurred
and be continuing, declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on account of any
interest in Pledgor, or purchase, redeem or otherwise acquire for value any
interest in DVL, Inc. or any other Affiliated Entity, or any rights or options
to acquire any such interest.
9.5 MERGERS, ETC. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, or acquire all or substantially all of the
assets of, any Person, or acquire any Person.
9.6 DISSOLUTION. Terminate, wind-up, liquidate or dissolve its
affairs (or suffer the same).
9.7 INVESTMENTS. Make, or suffer to exist, any investment of
any kind or in any manner in any Person, by purchase of stock or securities,
contributions to capital, property transfer or otherwise, or acquire or agree to
acquire by any manner any business or Person.
9.8 EXTRAORDINARY TRANSACTIONS. Enter into or agree to enter
into any transaction that is not in the ordinary course of business.
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9.9 CHANGE OF BUSINESS, LEGAL FORM, CAPITAL STRUCTURE OR
JURISDICTION. (a) Change the nature of its business or enter into a new
business, (b) change the legal form of its business, (c) make any change in the
capital structure thereof which could reasonably be expected to be detrimental
to the interests of Pledgee, or (d) change its jurisdiction of organization.
9.10 CHANGE IN ORGANIZATIONAL DOCUMENTS. Amend, modify or
otherwise change any of the terms or provisions in its organizational documents
as in effect on the date hereof, except for the amendment set forth on SCHEDULE
1 attached hereto (it being understood and agreed that such amendment shall not
constitute a default under the Buyer Transaction Documents, as defined in the
Purchase Agreement (as defined, in turn, in the April 2001 Pledge Agreement)).
9.11 BANKRUPTCY PROCEEDINGS. (a) Commence any case, proceeding
or other action under any existing or future bankruptcy, insolvency or similar
law seeking to have an order for relief entered with respect to itself, or
seeking reorganization, arrangement, adjustment, wind-up, liquidation,
dissolution, composition or other relief with respect to itself or its debts,
(b) seek appointment of a receiver, trustee, custodian or other similar official
for itself or any part of its assets, (c) make a general assignment for the
benefit of creditors, (d) take any action in furtherance of, or consenting to or
acquiescing in, any of the foregoing, and/or (e) initiate or support the filing
of a motion in any bankruptcy or other insolvency proceedings involving any of
its Affiliates to substantively consolidate itself with any such Person.
9.12 TRANSACTIONS WITH AFFILIATES. Enter into, or be a party to,
any transaction with any of its Affiliates, except any transactions (including,
without limitation, the lease of office space or computer equipment or software
by Pledgor from an Affiliate and the sharing of employees and employee resources
and benefits) (A) in the ordinary course of business of both Pledgor and that
Affiliate, and (B) upon fair and reasonable terms (and, to the extent material,
pursuant to written agreements) that are consistent with market terms for any
such transaction.
9.13 CLASSIFICATION ELECTION. Elect to be classified as an
association taxable as a corporation for federal, state, local or other tax
purposes.
10. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events shall constitute an "Event of Default" hereunder:
10.1 The occurrence of any event of default or default under the
Notes after expiration of any applicable notice and/or grace period permitted in
the Notes.
10.2 The failure of Pledgor to pay any amount of principal or
interest on the Indebtedness on the date on which such payment is due, whether
on demand, at the stated maturity, or due date thereof, or by reason of any
requirement for prepayment thereof, by acceleration or otherwise.
10.3 The failure of Pledgor to duly perform or observe any
obligation, covenant or agreement on its part contained herein and such failure
shall continue for a period of thirty (30) days following written notice from
Pledgee.
10.4 Any representation or warranty of Pledgor herein is
discovered to be untrue in any material respect or any statement, certificate or
data furnished by Pledgor pursuant hereto is discovered to be untrue in any
material respect as of the date as of which the facts therein set forth are
stated or certified
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and, if the same is susceptible of cure, the failure of Pledgor to cure the same
for a period of thirty (30) days following written notice from Pledgee.
11. RIGHTS OF PLEDGOR AND PLEDGEE.
11.1 BEFORE EVENT OF DEFAULT. Prior to the occurrence of an
Event of Default:
(a) VOTING. Pledgor shall be entitled to exercise any
and all voting and other consensual rights arising under the Collateral, or any
portion thereof, for any purpose not prohibited by the terms of the Notes.
(b) DISTRIBUTIONS. Pledgor shall be entitled to receive
and retain any and all distributions and interest, declared, distributed or
paid, with respect to the Collateral, or any portion thereof, provided, however,
that any and all (i) distributions and interest paid or payable other than in
cash; (ii) instruments and other property received, receivable or otherwise
distributed with respect to, or in exchange for, the Collateral, or any portion
thereof; (iii) distributions paid or payable in cash with respect to the
Collateral, or any portion thereof, in connection with (1) a partial or total
liquidation or dissolution, or (2) a reduction of capital, capital surplus or
paid-in-surplus; and (iv) cash paid, payable or otherwise distributed in respect
of principal, or redemption of, or in exchange for, the Collateral, or any
portion thereof; shall be forthwith delivered to Pledgee to hold as Collateral
and shall, if received by Pledgor, be (x) received in trust for the benefit of
Pledgee, (y) segregated from all other property or funds of Pledgor, and (z)
forthwith delivered to Pledgee as Collateral in the same form as so received
(with any necessary documents, endorsements or assignments in blank with
guaranteed signature(s)).
11.2 AFTER EVENT OF DEFAULT. Upon the occurrence of an Event of
Default and at all times thereafter:
(a) VOTING. All rights of Pledgor to (i) exercise voting
and other consensual rights which Pledgor would otherwise be entitled to
exercise, pursuant to SECTION 11.1(a), and (ii) receive distributions and
interest payments which Pledgor would otherwise be authorized to receive and
retain, pursuant to SECTION 11.1(b), shall cease, and all such rights shall
thereupon become absolutely vested in Pledgee. Pledgee shall thereafter have the
sole and absolute right to exercise all voting and other consensual rights, and
to receive and hold as Collateral all such distributions and interest payments
and apply the same in accordance with Section 11.2(d), without any further
notice to, or consent of, Pledgor.
(b) DISTRIBUTIONS HELD IN TRUST. All distributions and
interest payments which are received by Pledgor contrary to the provisions of
SECTION 11.2(a)(ii) shall be (i) received in trust for the benefit of Pledgee,
(ii) shall be segregated from other property or funds of Pledgor and (iii)
forthwith delivered to Pledgee as Collateral in the same form as received (with
any necessary documents, endorsements or assignments in blank with guaranteed
signatures).
(c) SALE OF COLLATERAL. Pledgee may exercise in respect
of the Collateral and in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party upon default under the Code. Pledgee may also, without notice, except as
specified below, sell the Collateral, or any part thereof, in one or more blocks
at public or private sale, at any exchange or otherwise or for future delivery,
and at such price or prices and upon such other terms as Pledgee may deem
commercially reasonable. Pledgor agrees that, to the extent notice of sale shall
be required by law, five (5) business days notice to Pledgor of the time and
place of any public sale or private sale is to be made shall constitute
reasonable notification. Pledgee shall not be obligated to make
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any sale of Collateral regardless of notice of sale having been given. Pledgee
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.
(d) APPLICATION OF PROCEEDS. Any cash held by Pledgee as
Collateral and all cash proceeds received by Pledgee in respect of any sale of,
collection from, or other realization upon the Collateral, or any portion
thereof, may, in the discretion of Pledgee, be held by Pledgee as Collateral
for, and/or then or at any time thereafter applied in whole or in part by
Pledgee against all or any part of the Indebtedness, in such order as Pledgee
shall elect in its sole discretion. Any surplus of such cash or cash proceeds
held by Pledgee and remaining after payment in full of all Indebtedness shall be
paid to Pledgor or to whomsoever may be lawfully entitled to receive such
surplus.
11.3 PLEDGEE'S RIGHTS. At any time and from time to time,
Pledgee shall have the right, in its discretion and without notice to Pledgor,
to transfer to or to register in the name of Pledgee, or any of Pledgee's
nominees, the Collateral, or any portion thereof, provided, however, that
Pledgor shall continue to be the beneficial owner of any Collateral transferred
to or registered in the name of Pledgee, or Pledgee's nominees, prior to the
occurrence of an Event of Default. In addition, Pledgee shall have the right at
any time to exchange certificates or instruments representing or evidencing the
Collateral, or any portion thereof, for certificates or instruments of smaller
or larger denominations.
12. REASONABLE CARE. Pledgee shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which Pledgee accords its own property.
13. DELAY OR OMISSION NOT WAIVER. Neither the failure nor any delay on
the part of Pledgee to exercise any right, remedy, power or privilege under this
Pledge upon the occurrence of any Event of Default or otherwise shall operate as
a waiver thereof or impair any such right, remedy, power or privilege. No waiver
of any Event of Default shall affect any later Event of Default or shall impair
any rights of Pledgee. No single, partial or full exercise of any rights,
remedies, powers and privileges by Pledgee shall preclude further or other
exercise thereof. No course of dealing between Pledgee and Pledgor shall operate
as or be deemed to constitute a waiver of Pledgee's rights under this Pledge or
affect the duties or obligations of Pledgor.
14. REMEDIES CUMULATIVE; CONSENTS. The rights, remedies, powers and
privileges provided for herein shall not be deemed exclusive, but shall be
cumulative and shall be in addition to all other rights, remedies, powers and
privileges in Pledgee's favor at law or in equity. Whenever Pledgee's consent or
approval is required or permitted, such consent or approval shall be at the sole
and absolute discretion of Pledgee.
15. CERTAIN FEES, COSTS, EXPENSES AND EXPENDITURES. Pledgor agrees to
pay on demand the following costs and expenses of Pledgee:
15.1 all losses, costs and expenses in connection with the
enforcement, protection and preservation of the Pledgee's rights or remedies
under this Pledge, or any other agreement of Pledgor relating to any
Indebtedness (including without limitation court costs, reasonable attorney's
fees and expenses of accountants and appraisers); and
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15.2 any and all stamp and other similar taxes payable or
determined to be payable in connection with the execution and delivery of this
Pledge, and all liabilities to which Pledgee may become subject as the result of
Pledgor's delay in paying or omission to pay such taxes.
In the event Pledgor shall fail to pay taxes, assessments, costs or
expenses which it is required to pay hereunder, or fails to keep the Collateral
free from security interests or lien (except as expressly permitted herein), or
otherwise breaches any obligations under this Pledge, Pledgee in its discretion,
may make expenditures for such purposes and the amount so expended (including
reasonable attorney's fees and expenses, filing fees and other charges) shall be
payable by Pledgor on demand and shall constitute part of the Indebtedness.
In the event any action at law or in equity in connection with the Notes,
the Indebtedness or matters collateral thereto is terminated adverse to one
party, the other party will pay all reasonable attorneys' fees and legal costs
incurred by such party in connection with such actions.
With respect to any amount required to be paid by Pledgor under this
Section, in the event Pledgor fails to pay such amount on demand, Pledgor shall
also pay to Pledgee interest thereon at a default rate equal to 2.5% per annum
in excess of the prime rate from time to time of First Union National Bank or,
if less, the highest rate permitted by applicable law. Pledgor's obligations
under this Section shall survive termination of this Pledge.
16. TIME IS OF THE ESSENCE. Time is of the essence in Pledgor's
performance of Pledgor's obligations under the Notes.
17. COMMUNICATIONS AND NOTICES. All notices, requests, demands and
other communications required or permitted under this Pledge shall be in writing
and shall be deemed to have been duly given, made and received only when
delivered (personally, by courier service such as Federal Express, or by other
messenger) or four days following the day when deposited in the United States
mails, registered or certified mail, postage prepaid, return receipt requested,
addressed as set forth below:
To Pledgee: X. X. XXXXXXXXX S.S.C. LIMITED PARTNERSHIP
Green Valley Executive Suites
0000 X. Xxxxx Xxxxxx Xxxxxxx, Building 3, Xxxxx 000
Xxxxxxxxx, XX 00000
With a copy, given in the manner prescribed above to:
Xxxxxx X. Xxxxxx, Esquire
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
To Pledgor: S2 HOLDINGS, INC.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
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With a copy, given in the manner prescribed above to:
DVL, Inc.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
and to:
Xxx Xxxxxxxx, Esquire
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
18. LIMITATION ON LIABILITY. Pledgor shall be responsible for and
Pledgee is hereby released from any claim or liability in connection with:
(a) Safekeeping any Collateral;
(b) Any loss or damage to any Collateral;
(c) Any diminution in value of the Collateral; or
(d) Any act or default of another person or entity.
Pledgee shall only be liable for any act or omission on its part
constituting gross negligence or willful misconduct. In the event that Pledgee
breaches its required standard of conduct, Pledgor agrees that Pledgee's
liability shall be only for direct damages suffered and shall not extend to
consequential or incidental damages. If Pledgor brings suit against Pledgee in
connection with the transactions contemplated hereunder and Pledgee is found not
to be liable, Pledgor will indemnify and hold Pledgee harmless from all costs
and expenses, including attorney's fees, incurred by Pledgee in connection with
such suit.
19. WAIVERS. In connection with any proceedings hereunder or in
connection with any of the Indebtedness, including without limitation any action
by Pledgee in replevin, foreclosure or other court process or in connection with
any other action related to the Indebtedness or the transactions contemplated
hereunder, Pledgor waives:
(a) all errors, defects and imperfections in such
proceedings;
(b) all benefits under any present or future laws
exempting any property, real or personal, or any part of any proceeds thereof
from attachment, levy or sale under execution, or providing for any stay of
execution to be issued on any judgment recovered in connection with the
Indebtedness or in any replevin or foreclosure proceeding, or otherwise
providing for any valuation, appraisal or exemption;
(c) presentment for payment, demand, notice of demand,
notice of non-payment, protest and notice of protest of any of the
Indebtedness;
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(d) any requirement for bonds, security or sureties
required by statute, court rule or otherwise;
(e) any demand for possession of Collateral prior to
commencement of any suit; and
(f) all rights to claim or recover attorney's fees and
costs in the event that Pledgor is successful in any action to remove, suspend
or prevent the enforcement of a judgment entered by confession.
20. MISCELLANEOUS PROVISIONS.
20.1 SEVERABILITY. The provisions of this Pledge and the Notes
are deemed to be severable, and the invalidity or unenforceability of any
provision shall not affect or impair the remaining provisions which shall
continue in full force and effect.
20.2 HEADINGS. The headings of the Articles, Sections,
paragraphs and clauses of this Pledge are inserted for convenience only and
shall not be deemed to constitute a part of this Pledge.
20.3 BINDING EFFECT. This Pledge and all rights and powers
granted hereby will bind and inure to the benefit of the parties hereto and
their respective permitted successors and assigns.
20.4 AMENDMENT. No modification of this Pledge or the Notes
shall be binding or enforceable unless in writing and signed by or on behalf of
the party against whom enforcement is sought.
20.5 GOVERNING LAW. This Pledge will be construed in accordance
with, and governed by, the laws of the State of Delaware.
20.6 NO THIRD PARTY BENEFICIARIES. The rights and benefits of
this Pledge and the Notes shall not inure to the benefit of any third party.
20.7 EXHIBITS AND SCHEDULES. All exhibits and schedules, if any,
attached hereto are hereby made a part of this Pledge.
20.8 COUNTERPARTS. This Pledge may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Pledge by signing any
such counterpart.
20.9 NO JOINT VENTURE. Nothing contained herein is intended to
permit or authorize Pledgor to make any contract on behalf of Pledgee, nor shall
this Pledge be construed as creating a partnership, joint venture or making
Pledgee an investor in Pledgor.
21. WAIVER OF RIGHT TO TRIAL BY JURY. PLEDGOR AND PLEDGEE WAIVE ANY
RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A)
ARISING UNDER THIS PLEDGE OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO HEREIN
OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF PLEDGE WITH RESPECT TO THIS PLEDGE OR ANY OTHER
DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR DELIVERED IN CONNECTION
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HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE. PLEDGOR AND PLEDGEE AGREE AND CONSENT
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS PLEDGE MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF PLEDGOR AND PLEDGEE TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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IN WITNESS WHEREOF, Pledgor has executed and delivered this Pledge as of
the date first above written.
PLEDGOR: S2 HOLDINGS, INC.
By________________________________________
Name:__________________________________
Title:_________________________________
Pledgee hereby joins in this Pledge for the sole purpose of ratifying and
confirming its consent to the provisions contained in SECTIONS 17 AND 21 above.
PLEDGEE:
X.X. XXXXXXXXX S.S.C. LIMITED PARTNERSHIP,
by its sole general partner:
X.X. XXXXXXXXX STRUCTURED SETTLEMENT
FUNDING CORPORATION
By:_______________________________________
Name:__________________________________
Title:_________________________________
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