PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of March 3, 1997 between XXXXXXX
XXXXXX (the "Pledgor") and XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK (the "Bank").
WHEREAS, the Bank may extend and has already extended loans
or other credit facilities or financial accommodations
(collectively, the "Loans") to or on behalf of the Pledgor from
time to time;
NOW, THEREFORE, to induce the Bank to extend the Loans and
to secure his obligations (collectively, the "Secured
Obligations") with regard thereto, and for other good
consideration, the receipt and adequacy of which are hereby
acknowledged, the Pledgor and the Bank agree as follows:
1. As collateral security for the performance of the
Secured Obligations, the Pledgor hereby pledges and assigns to
the Bank, and grants to the Bank a security interest in, those
securities identified in Exhibit A hereto, all proceeds and
products thereof and distributions thereon, and all other shares
of Xxxxxx & Xxxxx, Inc. from time to time maintained by him in
custody with the Bank (collectively, the "Collateral.
2. The Pledgor represents and warrants that: (i) all of
the Collateral is and will be validly and duly pledged to the
Bank in accordance with law, and agrees to defend the Bank's
right, title, lien and security interest in and to the Collateral
against the claims and demands of all persons whomsoever, (ii) he
has, and will have upon deposit with the Bank, title to all of
the Collateral, free and clear of all claims, mortgages, pledges,
liens, encumbrances and security interests of every nature
whatsoever, and that no consent or approval of any person, entity
or governmental or regulatory authority, or of any securities
exchange was or is necessary to the validity of this pledge,
(iii) the information set forth in Exhibit A is true and correct
and (iv) no liens, security interests or adverse claims other
than in favor of the Bank exist upon any of the Collateral.
3. The Pledgor will faithfully preserve and protect the
Bank's security interest in the Collateral and will do all such
acts and things and execute and deliver all such documents and
instruments, including without limitation further pledges,
assignments, financing statements and continuation statements, as
the Bank in its sole discretion may reasonably deem necessary or
advisable from time to time in order to preserve, protect and
perfect such security interest. The Pledgor hereby authorizes
the Bank to sign and file financing and continuation statements
without the signature of the Pledgor.
4. The Pledgor will not permit any liens, security
interests or adverse claims other than in favor of the Bank to
exist upon any of the Collateral and will not, without the prior
express written consent of the Bank, pledge any additional shares
of the Corporation (as defined in Exhibit A) to any person or
entity other than the Bank.
5. The Pledgor will not take any action that could in any
way limit or adversely affect the ability of the Bank to realize
upon its rights on the collateral.
6. The Pledgor agrees to notify the Bank:
(a) at least 72 hours prior to donating, or committing any
other act with respect to any securities of the same class (or
convertible into) shares of the Corporation which might render
the Collateral not salable; and
(b) immediately of any development or occurrence which to
his knowledge would render any of the Collateral not readily
saleable under Rules 144 or 145(d) or the Securities Act of 1933,
whichever is applicable.
7. If any time the Secured Obligations shall be in default
the Bank may cause all or any of the Collateral to be transferred
to or registered in its name or the name of its nominee or
nominees.
8. In the event the Secured Obligations shall be in
default (i) all dividends, interest and other distributions at
any time and from time to time declared or paid upon any of the
Collateral shall become part of the Collateral and (ii) the Bank
shall be entitled to exercise all voting power with respect to
the Collateral.
9. If any of the Secured Obligations shall not be
performed forthwith when due in accordance with their terms, the
Bank, without obligation to resort to other security, shall have
the right at any time and from time to time to sell, resell,
assign and deliver, in its discretion, all or any of the
Collateral, in one or more parcels at the same or different
times, and all right, title and interest, claim and demand
therein and right of redemption thereof, on any securities
exchange on which the Collateral or any of it may be listed, or
at public or private sale, for cash, upon credit or for future
delivery, and in connection therewith the Bank may grant options,
the Pledgor hereby waiving and releasing any and all equity or
right of redemption. If any of the Collateral is sold by the
Bank upon credit or for future delivery, the Bank shall not be
liable for the failure of the purchaser to purchase or pay for
the same and, in the event of any such failure, the Bank may
resell such Collateral. In no event shall the Pledgor be
credited with any part of the proceeds of sale of any Collateral
until cash payment thereof has actually been received by the
Bank. In addition, should any portion of the Collateral consist
of a time deposit or deposits with a financial institution, the
Bank may terminate such deposit or deposits prior to the maturity
thereof and any penalties payable in connection therewith shall
be for the sole account of the Pledgor.
10. No demand, advertisement or notice, all of which are
hereby expressly waived, shall be required in connection with any
sale or other disposition of any part of the Collateral which
threatens to decline speedily in value or which is of a type
customarily sold on a recognized market; otherwise the Bank shall
give the Pledgor at least five business days' prior notice of the
time and place of any public sale and of the time after which any
private sale or other disposition is to be made, which notice the
Pledgor agrees is reasonable, all other demands, advertisements
and notices being hereby waived. The Bank shall not be obligated
to make any sale of Collateral if it shall determine not to do
so, regardless of the fact that notice of sale may have been
given. The Bank may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from
time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the
time and place to which the same was so adjourned. In the case
of all sales of Collateral, public or private, the Pledgor shall
pay all costs and expenses of every kind for sale or delivery,
including brokers' and attorneys' fees, and after deducting such
costs and expenses from the proceeds of sale, the Bank shall
apply any residue to the payment of principal, interest and other
amounts owed with regard to the Loans. The balance, if any,
remaining after payment in full of all such amounts shall be paid
to the Pledgor, subject to any duty of the Bank imposed by law to
the holder of any subordinate security interest in the Collateral
known to the Bank.
11. The Pledgor recognizes that the Bank may be unable to
effect a public sale of all or a part of the Collateral by reason
of certain prohibitions contained in the Securities Act of 1933,
as amended, as now or hereafter in effect, or in applicable Blue
Sky or other state securities laws, as now or hereafter in
effect, but may be compelled to resort to one or more private
sales to a restricted group of purchasers who will be obliged to
agree, among other things, to acquire such Collateral for their
own account, for investment and not with a view to the
distribution or resale thereof. The Pledgor agrees that private
sales so made may be at prices and other terms less favorable to
the seller than if such Collateral were sold at public sales, and
that the Bank has no obligation to delay sale of any such
Collateral for the period of time necessary to permit the issuer
of such Collateral, even if such issuer would agree, to register
such Collateral for public sale under such applicable securities
laws. The Pledgor agrees that private sales made under the
foregoing circumstances shall be deemed to have been made in a
commercially reasonable manner.
12. The remedies provided herein in favor of the Bank shall
not be deemed exclusive, but shall be cumulative, and shall be in
addition to all other remedies in favor of the Bank existing at
law or in equity.
13. The Bank shall have the right, for and in the name,
place and stead of the Pledgor, to execute endorsements,
assignments or other instruments of conveyance or transfer with
respect to all or any of the Collateral.
14. The Bank shall have no duty as to the collection or
protection of the Collateral or any income thereon or as to the
preservation of any rights pertaining thereto, beyond the safe
custody of any thereof actually in its possession. With respect
to any maturities, calls, conversions, exchanges, redemptions,
offers, tenders or similar matters relating to any of the
Collateral (herein called "events"), the Bank's duty shall be
fully satisfied if (i) the Bank exercises reasonable care to
ascertain the occurrence and to give reasonable notice to the
Pledgor of any events applicable to any Collateral which is
registered and held in the name of the Bank or its nominee, (ii)
the Bank gives the Pledgor reasonable notice of the occurrence of
any events, of which the Bank has received actual knowledge, as
to any securities which are in bearer form or are not registered
and held in the name of the Bank or its nominee (the Pledgor
agreeing to give the Bank reasonable notice of the occurrence of
any events applicable to any securities in the possession of the
Bank of which the Pledgor has received knowledge), and (iii) in
the exercise of its sole discretion (a) the Bank endeavors to
take such action with respect to any of the events as the Pledgor
may reasonably and specifically request in writing in sufficient
time for such action to be evaluated and taken or (b) if the Bank
determines that the action requested might adversely affect the
value of the Collateral as collateral, the collection of the
Loans, or otherwise prejudice the interests of the Bank, the Bank
gives reasonable notice to the Pledgor that any such requested
action will not be taken and if the Bank makes such determination
or if the Pledgor fails to make such timely request, the Bank
takes such other action as it deems advisable in the
circumstances. Except as hereinabove specifically set forth, the
Bank shall have no further obligation to ascertain the occurrence
of, or to notify the Pledgor with respect to, any events and
shall not be deemed to assume any such further obligation as a
result of the establishment by the Bank of any internal
procedures with respect to any securities in its possession. The
Pledgor releases the Bank from any claims, causes of action and
demands at any time arising out of or with respect to this
Agreement, the Collateral and/or any actions, taken or omitted to
be taken by the Bank with respect thereto, and the Pledgor hereby
agrees to hold the Bank harmless from and with respect to any and
all such claims, causes of action and demands.
15. The Pledgor hereby irrevocably appoints the Bank as the
Pledgor's attorney-in-fact for the purpose of carrying out the
provisions of this Agreement and taking any action and executing
any instrument which either may deem necessary or advisable to
accomplish the purposes hereof. Without limiting the generality
of the foregoing, the Bank shall have the right and power to
receive, endorse and collect all checks and other orders for the
payment of money made payable to the Pledgor representing any
interest or dividend or other distribution payable in respect of
the Collateral or any part thereof and to give full discharge for
the same.
16. No delay on the part of the Bank in exercising any of
its options, powers or rights, or partial or single exercise
thereof, shall constitute a waiver thereof. The pledge of the
Collateral hereby shall not in any way preclude or restrict any
recourse by the Bank against the Borrower or any other person or
entity liable with regard to the Secured Obligations or any other
collateral therefor.
17. Upon the repayment in full of all principal, interest
and other amounts that may be payable with regard to the Loans,
the Pledgor shall be entitled to the return of all of the
Collateral and of all other property and cash which have not been
used or applied toward the payment of such principal, interest
and other amounts free and clear of all liens in favor of the
Bank or any encumbrances imposed by the Bank. Except as
aforesaid, the assignment by the Bank to the Pledgor of such
Collateral and other property shall be without representation or
warranty of any nature whatsoever and wholly without recourse.
18. Any notice or demand upon the Pledgor shall be deemed
to have been sufficiently given for all purposes thereof if
mailed, postage prepaid, by registered or certified mail, return
receipt requested, or if delivered, to the Pledgor at the address
specified below, or at such other address as the Pledgor may
theretofore have designated in writing and given in like manner
to the Bank.
19. Any waiver, permit, consent or approval of any kind or
character on the part of the Bank of any breach or default under
this Agreement or any such waiver of any provision or condition
of this Agreement must be in writing and shall be effective only
to the extent specifically set forth in such writing.
20. This Agreement and the rights and obligations of the
Bank and the Pledgor hereunder shall be construed in accordance
with and governed by the laws of the State of New York, cannot be
changed orally and shall bind and inure to the benefit of the
Pledgor and the Bank and their respective successors and assigns,
and all subsequent holders of the Secured Obligations.
21. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all
of which taken together shall constitute but one and the same
instrument.
22. This Agreement replaces all prior agreements between
the Pledgor and the Bank relating to the Collateral contained in
any promissory note delivered to the Bank by the Pledgor.
23. The Pledgor agrees to pay the Bank on demand all costs,
including legal fees, incurred by the Bank in connection with the
administration and enforcement of this Agreement.
IN WITNESS WHEREOF, the Pledgor and the Bank have caused
this Agreement to be duly executed as of the day and year first
above written.
_____________________________
XXXXXXX XXXXXX
Address:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: _________________________
Xxxxxxx Xxxxxxxx,
Vice President
Address:
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Exhibit A
THE COLLATERAL
Name of Issuer of Pledged
Shares (the "Corporation") No. of Shares Class of Shares Certificate No.
Xxxxxx & Xxxxx, Inc. (SEE ATTACHED SCHEDULE)
Date of Acquisition Nature of Acquisition Date on which Shares
of Shares of Shares fully paid for
NUMBER OF SHARES OF THE CORPORATION OWNED BY PLEDGOR
The Pledgor represents that:
(a) the total number of shares that he directly owns of the class of
security of the Corporation hereby being pledged is 4,486,209, and
(b) the total number of all other classes of the securities of the
Corporation directly or indirectly owned by the Pledgor is NONE
SALES BY PLEDGOR OF STOCK OF THE CORPORATION
The Pledgor represents to the Bank that during the last three months he, or
any person(s) who Pledgor must aggregate his sales with under Rule 144 of
the Securities Act of 1933, as amended,
(a) has sold 0 shares of the Corporation; and
(b) has sold 0 convertible securities which are convertible
into shares of the Corporation.
In addition, the Pledgor and such person(s) currently have no sale orders
open with any broker and that he and they will not place any such sale
orders to sell shares of the Corporation or such convertible securities
without the prior express written consent of the Bank.
EXISTING PLEDGES TO OTHERS OF STOCK OF THE CORPORATION
No. of Pledged
Shares Date of Pledge Pledgee
NONE
XXXXXX & NOBLE, INC. COMMON STOCK
---------------------------------
ACQUISITON AND NATURE OF
CERT NO. NO. OF SHARES FULL PAYMENT DATE ACQUISITION
-------- ------------- ----------------- ------------
4 100 12/30/86 Original Issue
7 106 12/30/86 Original Issue
12 283 12/30/86 Original Issue
90 1,194,915 12/30/86 Original Issue
243 727,800 12/30/86 Original Issue
412 630,000 12/30/86 Original Issue
485 398,769 11/16/92 Original Issue
607 491,167 12/30/86 Original Issue
758 833,669 11/16/92 Original Issue
23,300 1/17/97 Open Market Purchase
25,000 1/21/97 Open Market Purchase
10,000 1/21/97 Open Market Purchase
7,000 1/21/97 Open Market Purchase
5,000 1/21/97 Open Market Purchase
24,900 1/22/97 Open Market Purchase
22,600 1/22/97 Open Market Purchase
5,500 1/22/97 Open Market Purchase
10,000 2/25/97 Open Market Purchase
26,100 2/25/97 Open Market Purchase
50,000 2/25/97 Open Market Purchase