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EXHIBIT 10.51
PLEDGE AND SECURITY AGREEMENT, dated as of December 1, 1984, made by South
Jersey Process Technology, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Pledgor"), to Bankers Trust Company (the
"Bank") pursuant to the Letter of Credit Agreement dated as of December 1, 1984,
between the Pledgor and the Bank (hereinafter, as the same may from time to time
be amended or supplemented, called the "Letter of Credit Agreement").
W I T N E S S E T H:
WHEREAS, the City of Salem Municipal Port Authority (the "Issuer") has
agreed with the Pledgor to issue its Port Development Revenue Bonds (South
Jersey Process Technology, Inc. Project) Series of 1984 (the "Bonds") under the
Trust indenture dated as of December 1, 1984 (the "Indenture"), from the Issuer
to The Farmers and Merchants National Bank of Bridgeton, as trustee (the
"Trustee");
WHEREAS, the Indenture provides for the purchase of Bonds under certain
circumstances as set forth in Section 3.01, 3.02 and 3.06 of the Indenture (the
"Purchased Bonds") from the holders thereof;
WHEREAS, in connection with the issuance of the Bonds the Pledgor has
entered into the Letter of Credit Agreement in order to cause the Bank to issue
the Letter of Credit thereunder which may be used, inter alia, to pay the
Purchase Price of the Purchased Bonds (to the extent moneys drawn under the
Letter of Credit are used to purchase Purchased Bonds, such Purchased Bonds are
hereinafter referred to as "Pledged Bonds"); and
WHEREAS, it is a condition precedent to the obligation of the Bank to
enter into the Letter of Credit Agreement that the Pledgor shall have executed
and delivered this Pledge Agreement to the Bank;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Bank to enter into the Letter of Credit Agreement and issue the Letter of
Credit thereunder and for other good and valuable consideration, receipt of
which is hereby acknowledged, the Pledgor hereby agrees with the Bank as
follows:
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1. Defined Terms. Unless otherwise defined herein, terms defined in the
Letter of Credit Agreement shall have such defined meanings when used herein.
2. Pledge. The Pledgor hereby pledges, assigns, hypothecates, transfers,
and delivers to the Bank all its right, title and interest to the Pledged Bonds
as the same may be from time to time delivered to the Tender Agent by the
holders thereof and hereby grants to the Bank a first lien on, and security
interest in, its right, title and interest in and to the Pledged Bonds, the
interest thereon and all proceeds thereof, as collateral security for the prompt
and complete payment when due of all amounts due in respect of the obligations
of the Pledgor set forth in Paragraph 2A(i) of the Letter of Credit Agreement
and interest on such amounts as set forth in Paragraph 2A(iii) of the Letter of
Credit Agreement (all the foregoing being hereinafter called the "Obligations").
3. Payments on the Bonds. If, while this Pledge Agreement is in effect,
the Pledgor shall become entitled to receive or shall receive any principal or
interest payment in respect of the Pledged Bonds, the Pledgor agrees to accept
the same as the Bank's agent and to hold the same in trust on behalf of the Bank
and to deliver the same forth with to the Bank. All sums of money so paid in
respect of the Pledged Bonds which are received by the Pledgor and paid to the
Bank shall be credited against the obligations of the Pledgor to the Bank in the
manner set forth in Paragraph 2D of the Letter of Credit Agreement. So long as
no Default or Event of Default has occurred and is continuing, any amounts
received by the Bank; in respect of the stated interest on any Pledged Bonds in
excess of the amounts then owing to the Bank pursuant to Paragraph 2A(i)(2) of
the Letter of Credit Agreement, shall, upon request of the Pledgor, be remitted
to the Pledgor.
4. Collateral. All property at any time pledged with the Bank hereunder
(whether described herein or not) and all income therefrom and proceeds thereof,
are herein collectively sometimes called the "Collateral".
5. Release of Pledged Bonds. If the Pledgor makes or causes to be made to
the Bank a prepayment in respect of its reimbursement obligation under Paragraph
2A(i) of the Letter of Credit Agreement pursuant to clause (i) of Paragraph 2B
thereof or such a repayment is made on behalf of the Pledgor pursuant to clause
(ii) of Paragraph 2B thereof, the Bank
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agrees to release from the lien of this Pledge Agreement and deliver to the
Pledgor or the Tender Agent for resale in accordance with Section 3.09 of the
Indenture, as the case may be, Pledged Bonds in a principal amount equal to the
amount of the prepayment so made or to the principal amount of Pledged Bonds so
purchased. Notwithstanding the foregoing, no prepayment of amounts owing to the
Bank pursuant to Paragraph 2A(i) may be made, and no Pledged Bonds shall be
released, during the period commencing two Business Days prior to an interest
payment date with respect to the Bonds and ending at the close of business on
such interest payment date,
6 Rights of the Bank. The Bank shall not be liable for failure to collect
or realize upon the Obligations or any collateral security or guarantee
therefor, or any part thereof, or for any delay in so doing nor shall it be
under any obligation- to take any action whatsoever with regard thereto. If an
Event of Default has occurred and is continuing, the Bank may thereafter,
without notice, exercise all rights, privileges or options pertaining to any
Pledged Bonds as if it were the absolute owner thereof, upon such terms and
conditions as it may determine, all without liability except to account for
property actually received by it, but the Bank shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not be responsible
for any failure to do so or delay in so doing.
7. Remedies. In the event that any portion of the obligations has been
declared due and payable pursuant to the Letter of Credit Agreement, the Bank,
without demand of performance or other demand, advertisement or notice of any
kind (except the notice specified below of time and place of public or private
sale) to or upon the Pledgor or any other person (all and each of which demands,
advertisements and/or notices are hereby expressly waived), may forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, assign, give option or options to purchase,
contract to sell or otherwise dispose of and deliver said Collateral, or any
part thereof, in one or more parcels at public or private sale or sales, at any
exchange, broker's board or at any of the Bank's offices or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit risk, with the right to the Bank upon any such sale or sales, public or
private, to purchase the whole or any part of said Collateral so sold, free of
any right or
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equity of redemption in the Pledgor, which right or equity is hereby expressly
waived or released. The Bank shall apply the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred therein or
incidental to the care, safekeeping or otherwise of any and all of the
Collateral or in any way relating to the rights of the Bank hereunder, including
reasonable attorney's fees and legal expenses, to the payment, in whole or in
part, of the Obligations in such order as the Bank may elect, the Pledgor
remaining liable for any deficiency remaining unpaid after such application, and
only after so applying such net proceeds and after the payment by the Bank of
any other amount required to be paid by any provision of law, including, without
limitation, Section 9-504(l)(c) of the Uniform Commercial Code, need the Bank
account for the surplus, if any, to the Pledgor. The Pledgor agrees that the
Bank need not give more than ten days' notice of the time and place of any
public sale or of the time after which a private sale or other intended
disposition is to take place and that such notice is reasonable notification of
such matters. No notification need be given to the Pledgor if it has signed
after default a statement renouncing or modifying any right to-notification of
sale or other intended disposition. In addition to the rights and remedies
granted to it in this Pledge Agreement and in any other instrument or agreement
securing, evidencing or relating to any of the obligations, the Bank shall have
all the rights and remedies of a secured party under the Uniform Commercial Code
of the State of New York. The Pledgor further agrees to waive and agrees not to
assert any rights or privileges which it may acquire under Section 9-112 of the
Uniform Commercial Code and the Pledgor shall be liable for the deficiency if
the proceeds of any sale or other disposition of the Collateral are insufficient
to pay all amounts to which the Bank is entitled, and the fees of any attorneys
employed by the Bank to collect such deficiency.
8. Representations, Warranties and Covenants of the Pledgor. The Pledgor
represents and warrants that: (a) on the date of delivery to the Bank of any
Pledged Bonds described herein, neither the Issuer, the Remarketing Agent (as
defined in the Indenture), the Tender Agent, nor the Trustee will have any
right, title or interest in and to the Pledged Bonds; (b) it has, and on the
date of delivery to the Bank of any Pledged Bonds will have, full power,
authority and legal right to pledge all of its right, title and interest in and
to the Pledged Bonds pursuant to this Pledge
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Agreement; (c) this Pledge Agreement has been duly authorized, executed and
delivered by the Pledgor and constitutes a legal, valid and binding obligation
of the Pledgor enforceable in accordance with its terms; (d) no consent of any
other party (including, without limitation, creditors of the Pledgor) and no
consent, license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
authority, domestic or foreign, is required to be obtained by the Pledgor in
connection with the execution, delivery or performance of this Pledge Agreement;
(e) the execution, delivery and performance of this Pledge Agreement will not
violate any provision of any applicable law or regulation or of any order,
judgment, writ, award or decree of any court, arbitrator or governmental
authority, domestic or foreign, or of any mortgage, indenture, lease, contract,
or other agreement, instrument or undertaking to which the Pledgor is a party or
which purports to be binding upon the Pledgor or upon its assets and will not
result in the creation or imposition of any lien, charge or encumbrance on or
security interest in any of the assets of the Pledgor except as contemplated by
this Agreement; and (f) the pledge, assignment and del [ word unreadable] of
such Pledged Bonds pursuant to this Pledge Agreement will create a valid first
lien on and a first perfected security interest in, all right, title or interest
of the Pledgor in or to such Pledged Bonds, and the proceeds thereof, subject to
no prior pledge, lien, mortgage, hypothecation, security interest, charge,
option or encumbrance or to any agreement purporting to grant to any third party
a security interest in the property or assets of the Pledgor which would include
the Pledged Bonds. The Pledgor covenants and agrees that it will defend the
Bank's right, title and security interest in and to the Pledged Bonds and the
proceeds is thereof against the claims and demands of all persons whomsoever;
and covenants and agrees that it will have like title to and right to pledge any
other property at any time hereafter pledged to the Bank as Collateral hereunder
and will likewise defend the Bank's right thereto and security interest therein.
9. No Disposition, etc. Without the prior written consent of the Bank, the
Pledgor agrees that it will not sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Collateral, nor will it
create, incur or permit to exist any pledge, lien, mortgage, hypothecation,
security charge, option or any other encumbrance with respect to any of the
Collateral, or any interest therein, or any proceeds thereof,
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except for the lien and security interest provided for by this Pledge Agreement
and sale of the Pledged Bonds pursuant to Section 3.09(b) of the Indenture.
l0. Further Assurances. The Pledgor agrees that at any time and from time
to time upon the written request of the Bank, the Pledgor will execute and
deliver such further documents and do such further acts and things as the Bank
may reasonably request in order to effect the purposes of this Pledge Agreement.
11. Severability. Any provision of this Pledge Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. No Waiver; Remedies Cumulative. The Bank shall not by any act, delay,
omission or otherwise be deemed to have waived any of its rights or remedies
hereunder and no waiver shall be valid unless in writing, signed by the Bank,
and then only to the extent therein set forth. A waiver by the Bank of any right
or remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Bank would otherwise have on any future occasion. No
failure to exercise nor any delay in exercising on the part of the Bank, any
right, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided are
cumulative and may be exercised singly or concurrently, and are not exclusive of
any rights or remedies provided by the operative Documents or by law.
13. Waivers, Amendments; Applicable Law. None of the terms or provisions
of this Pledge Agreement may be waived, altered, modified or amended except by
an instrument in writing, duly executed by the Bank. This Pledge Agreement and
all obligations of the Pledgor hereunder shall be binding upon the successors
and assigns of the Pledgor, and shall, together with the rights and remedies of
the Bank hereunder, inure to the benefit of the Bank and its successors and
assigns. This Pledge Agreement shall be governed
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by, and be construed and interpreted in accordance with, the laws of the State
of New York.
IN WITNESS WHEREOF, the Pledgor has caused this Pledge Agreement to be
duly executed and delivered on the day and year first above written.
SOUTH JERSEY PROCESS
TECHNOLOGY,INC.
By /s/ [SIG]
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Title: President
