GEABP 2/11/03
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT, dated as of 19 February, 0000 xxxxxxx Xxxxxxxx
(XXX) Holdings Limited, a California company ("Pledgor") and The Governor and
Company of the Bank of Scotland, a bank organized under the laws of Scotland
("Pledgee"), delivered pursuant to the Term Loan and Guarantee Facility of up to
$23,000,000, dated as of December 20, 2002 (the "Amended and Restated Facility
Agreement"), among each of the borrowers named thereunder (the "Borrowers") and
Pledgee.
W I T N E S S E T H:
WHEREAS, Pledgor owns the number of shares of capital stock of the
corporation listed on Schedule I hereto.
WHEREAS, pursuant to the Amended and Restated Facility Agreement, under
which Pledgee has agreed to make available loans and other financial
accommodations (together herein, the "Loans") to the Borrowers;
WHEREAS, it is a condition to the provision of the Loans by Pledgee
pursuant to the Amended and Restated Facility Agreement that Pledgor shall have
executed and delivered to Pledgee this Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants set
forth herein and in the Amended and Restated Facility Agreement, the parties
hereto agree as follows:
1. Definitions. Capitalized terms used but not defined herein and defined
in the Amended and Restated Facility Agreement are used herein as therein
defined. References to this "Agreement" shall mean this Stock Pledge Agreement
as the same may be in effect at the time such reference becomes operative,
including all amendments, modifications and supplements hereto and any exhibits
or schedules to any of the foregoing.
2. Pledge. Pledgor hereby pledges, assigns, grants a security interest in,
transfers and delivers unto Pledgee each of the following (the "Collateral"):
(a) all of Pledgor's right, title and interest in and to the shares
(the "Pledged Shares") of capital stock described in Schedule I hereto and
the certificates, if any, representing the Pledged Shares, and all
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of the Pledged Shares;
(b) all additional shares (the "Additional Shares") of capital stock
or other equity interest of any issuer of any Pledged Shares from time to
time acquired by Pledgor in any manner and the certificates, if any,
representing such additional shares, and all dividends, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares;
(c) all other rights appurtenant to the property described in clauses
(a) and (b) above (including, without limitation, voting rights); and
(d) all cash and non-cash proceeds of any and all of the foregoing.
Certificates representing the certificated Pledged Shares set forth on
Schedule I hereto, accompanied by proper instruments of assignment duly executed
in blank by Pledgor, are herewith delivered to Pledgee. Promptly upon Pledgor's
acquisition of any Additional Shares, Pledgor, will (i) deliver proper
instruments of assignment duly executed in blank by Pledgor together with any
certificates representing such Additional Shares, whereupon such Additional
Shares shall be Pledged Shares; and (ii) amend Schedule I to include such
Additional Shares. Any Collateral which may at any time be in the possession of
Pledgor shall be promptly delivered to Pledgee, and prior thereto, shall be
deemed to be held in trust on behalf of Pledgee. Pledgee is hereby authorized
upon an Event of Default to hold any and all of the Collateral delivered to it
in its own name, or, at Pledgee's option, to cause such items to be transferred
to and held in the name of a nominee.
If any securities now or hereafter acquired by the Pledgor are
uncertificated and are issued to the Pledgor or its nominee directly by the
issuer thereof, the Pledgor shall immediately notify the Pledgee thereof and, at
the Pledgee's request and option, under an agreement in form and substance
satisfactory to the Pledgee, either (a) cause the issuer to agree to comply,
without further consent of the Pledgor or such nominee, at any time with
instructions from the Pledgee as to such securities, or (b) arrange for the
Pledgee to become the registered owner of the securities. If any securities,
whether certificated or uncertificated, or other investment property now or
hereafter acquired by the Pledgor are held by the Pledgor or its nominee through
a securities intermediary, the Pledgor shall immediately notify the Pledgee
thereof and, at the Pledgee's request and option, under an agreement in form and
substance satisfactory to the Pledgee, either (i) cause such securities
intermediary to agree to comply, in each case without further consent of the
Pledgor or such nominee, at any time with entitlement orders or other
instructions from the Pledgee to such securities intermediary as to such
securities or (ii) in the case of financial assets or other investment property
held through a securities intermediary, arrange for the Pledgee to become the
entitlement holder with respect to such investment property, with the Pledgor
being permitted, only with the consent of the Pledgee, to exercise rights to
withdraw or otherwise deal with such investment property. The provisions of this
paragraph shall not apply to any financial assets credited to a securities
account for which the Pledgee is the securities intermediary.
3. Obligations Secured. The security interests granted by Pledgor to
Pledgee under this Agreement secure (a) the payment and performance of all
obligations of the Borrowers whether arising under the Amended and Restated
Facility Agreement or any other financing document; (b) performance by Pledgor
of its obligations and agreements set forth herein and in each other financing
document to which it is a party; (c) all payments made or expenses incurred by
Pledgee, including, without limitation, reasonable attorneys fees and legal
expenses, in the exercise, preservation or enforcement of any of the rights,
powers or remedies of Pledgee, or in the enforcement of the obligations of
Pledgor, hereunder; and (d) any renewals, continuations or extensions of any of
the foregoing (all of which are referred to herein as the "Obligations").
4. Representations and Warranties. Pledgor hereby represents and warrants
to Pledgee that as of the date hereof, and agrees that each delivery of
Additional Shares shall constitute a representation and warranty that as of the
date thereof:
(a) Pledgor is the sole holder of record and beneficial owner of the
Pledged Shares set forth on Schedule I hereto (including all Additional
Shares required to be listed thereon), free and clear of any pledge,
hypothecation, assignment, lien, charge, claim, security interest, option,
preference, priority or other preferential arrangement of any kind or
nature whatsoever ("Lien") thereon or affecting the title thereto.
(b) The Pledged Shares are fully paid and non-assessable, and Pledgor
has the right and all requisite corporate authority to pledge, assign,
grant a security interest in, transfer and deliver the Collateral to
Pledgee as provided herein.
(c) This Agreement has been duly authorized, executed and delivered by
Pledgor and constitutes the legal, valid and binding obligation of Pledgor,
enforceable in accordance with its terms.
(d) No consent, approval, authorization or other order of any Person
is required for (i) the execution and delivery of this Agreement by Pledgor
or the delivery by Pledgor of the Collateral to Pledgee as provided herein,
or (ii) the exercise by Pledgee of the voting or other rights provided for
in this Agreement or the remedies in respect of the Collateral pursuant to
this Agreement, except as may be required in connection with the
disposition of the Collateral by laws affecting the offering and sale of
securities generally or as otherwise has been obtained.
(e) The chief executive office of Pledgor is located at its address
set forth in Section 18.
(f) The jurisdiction of formation of Pledgor is California.
(g) Upon the delivery to Pledgee of the certificates representing the
Pledged Shares, duly endorsed to the Pledgee or in blank, Pledgee will have
a valid and perfected security interest therein subject to no prior Lien.
The representations and warranties set forth in this Section 4 shall survive the
execution and delivery of this Agreement.
5. Rights of Pledgor. Until a Default or an Event of Default shall have
occurred:
(a) Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Shares or any part thereof for
any purpose not inconsistent with the terms of this Agreement or the
Amended and Restated Facility Agreement; provided, that Pledgor shall not
exercise or shall refrain from exercising such right if, in Pledgee's
judgment, such action would have a material adverse effect on the value of
the Pledged Shares or any part thereof, and provided, further, that Pledgor
shall give Pledgee at least five days' prior written notice of the manner
in which it intends to exercise, or the reasons for refraining from
exercising, any such right.
(b) Pledgor shall be entitled, from time to time, to collect and
receive for its own use all cash dividends (except cash dividends paid or
payable in respect of the total or partial liquidation of an issuer) paid
on the Pledged Shares; provided, however, that until actually paid, all
rights to such dividends shall remain subject to the Lien of this
Agreement. All dividends (other than cash dividends governed by the
immediately preceding sentence) and all other distributions in respect of
any of the Collateral, whenever paid or made, shall be delivered to Pledgee
and held by it subject to the Lien created by this Agreement.
6. Covenants. Pledgor covenants and agrees that until the termination of
this Agreement:
(a) Pledgor will not, without the prior written consent of Pledgee, sell,
assign, transfer, mortgage, pledge or otherwise encumber any of its rights in or
to the Collateral or any dividends or other distributions or payments with
respect thereto or xxxxx x Xxxx on any thereon, other than as permitted under
the Amended and Restated Facility Agreement.
(b) Pledgor will, at its own expense, execute, acknowledge and deliver all
such instruments and take all such action as Pledgee from time to time may
reasonably request in order to ensure to Pledgee the benefits of the first
priority Lien on and to the Collateral intended to be created by this Agreement.
(c) Pledgor will defend the title to the Collateral and the Lien of Pledgee
thereon against the claim of any Person claiming against or through Pledgor and
will maintain and preserve such Lien so long as this Agreement shall remain in
effect.
(d) Unless Pledgor shall have given Pledgee not less than 30 days' prior
notice thereof, Pledgor will not change (i) its name, identity or corporate
structure in any manner or (ii) the location of its chief executive office.
7. Remedies.
(a) Upon the occurrence of a Default or an Event of Default, then or
at any time during the continuance of such occurrence, Pledgee is hereby
authorized and empowered, at its election, (i) to transfer and register in
its or its nominee's name the whole or any part of the Collateral, (ii) to
exercise all voting rights with respect thereto, (iii) to demand, xxx for,
collect, receive and give acquittance for any and all cash dividends or
other distributions or monies due or to become due upon or by virtue
thereof, and to settle prosecute or defend any action or proceeding with
respect thereto, (iv) to sell in one or more sales the whole or any part of
the Collateral or otherwise to transfer or assign the same, applying the
proceeds therefrom to the payment of the Obligations in such order as
Pledgee shall determine, and (v) otherwise to act with respect to the
Collateral or the proceeds thereof as though Pledgee were the outright
owner thereof, Pledgor hereby irrevocably constituting Pledgee as its proxy
and attorney-in-fact, with full power of substitution to do so.
(b) Pledgee shall give Pledgor not less than ten days prior written
notice of the time and place of any sale or other intended disposition of
any of the Collateral except any Collateral that threatens to decline
speedily in value or is of a type customarily sold on a recognized market.
Pledgor agrees that such notice constitutes reasonable notice and a
"reasonable authenticated notification" within the meaning of Section
9-611(b) of the Uniform Commercial Code. Any sale shall be made at a public
or private sale of Pledgee's place of business, at such other location to
be named in the notice of sale, either for cash or upon credit or for
future delivery at such price as Pledgee may deem fair, and, to the extent
permitted by applicable law. Pledgee may be the purchaser of the whole or
any part of the Collateral so sold and hold the same thereafter in its own
right free from any claim of Pledgor or any right or equity of redemption,
which right or equity is hereby waived and released. Each sale shall be
made to the highest bidder, but Pledgee reserves the right to reject any
and all bids at such sale which, in its sole discretion, it shall deem
inadequate. Except as otherwise herein specifically provided for, demands
of performance, notices of sale, advertisements and the presence of
property at sale are hereby waived and any sale hereunder may be conducted
by an auctioneer or any officer or agent of Pledgee.
(c) If, at the original time or times appointed for the sale of the
whole or any part of the Collateral, either (i) the highest bid, if there
be but one sale, shall be inadequate to discharge in full all the
Obligations, or (ii) if the Collateral be offered for sale in lots, if at
any of such sales the highest bid for the lot offered for sale would
indicate to Pledgee in its sole discretion the unlikelihood of the proceeds
of the sales of the whole of the Collateral being sufficient to discharge
all the Obligations, then in either such event Pledgee may, on one or more
occasions, postpone any of said sales by public announcement at the time of
sale. In the event of any such postponement, Pledgee shall give Pledgor
notice of such postponement.
(d) If, at any time when Pledgee shall determine to exercise its
rights to sell the whole or any part of the Collateral hereunder, such
Collateral or the part thereof to be sold shall not, for any reason
whatsoever, be effectively registered under the Act, Pledgee may, in its
sole and absolute discretion (subject only to applicable requirements of
law), sell such Collateral or part thereof by private sale in such manner
and under such circumstances as Pledgee may deem necessary or advisable,
but subject to the other requirements of this Section 7, and shall not be
required to effect such registration or to cause the same to be effected.
Without limiting the generality of the foregoing, in any such event Pledgee
in its sole and absolute discretion may (i) proceed to make such private
sale notwithstanding that a registration statement for the purpose of
registering such Collateral or part thereof could be or shall have been
filed under the Act (or similar statute), (ii) approach and negotiate with
a single possible purchaser to effect such sale, (iii) restrict such sale
to a purchaser who will represent and agree that such purchaser is
purchasing for its own account, for investment and not with a view to the
distribution or sale of such Collateral or part thereof, and (iv) require
that any sale hereunder (including a sale at auction) be conducted subject
to restrictions (A) as to the financial sophistication and ability of any
Person permitted to bid or purchase at sale, (B) as to the content of
legends to be placed upon any certificates representing the Collateral sold
in such sale, including restrictions on future transfer thereof, (C) as to
the representations required to be made by each Person bidding or
purchasing at such sale relating to that Person's access to financial
information about Pledgor, any of the issuers of the Pledged Shares,
Pledgee, such Person's intentions as to the holding of the Collateral so
sold for investment, for its own account, and not with a view to the
distribution thereof, and (D) as to such other matters as Pledgee may, in
its sole discretion, deem necessary or appropriate in order that such sale
(notwithstanding any failure so to register) may be effected in compliance
with the Uniform Commercial Code and other laws affecting the enforcement
of creditors' rights and the Act (or similar statute) and all applicable
state securities laws. Pledgor will execute and deliver such documents and
take such other action as Pledgee deem necessary or advisable in order that
any such sale may be made in compliance with law.
(e) Pledgor acknowledges that: (i) any sale under the circumstances
described in this Section 7 shall be deemed to have been held in a manner
which is commercially reasonable, and (ii) notwithstanding the legal
availability of a private sale or a sale subject to restrictions of the
character described above, Pledgee may, in its sole discretion, elect to
seek registration of the Collateral under the Act (or similar statute or
any applicable state securities laws) in accordance with its rights under
this Section 7. In the event of any such sale under the circumstances
described in this Section 7, neither Pledgee nor any Bank shall incur
responsibility or liability for selling the whole or any part of the
Collateral at a price which Pledgee may deem reasonable under the
circumstances, notwithstanding the possibility that a substantially higher
price might be realized if the sales were deferred until after registration
as aforesaid. Pledgor hereby acknowledges that any sale of any of the
Collateral which has not been registered under the Act may be for a price
less that which might have been obtained had the Collateral been registered
under the Act.
(f) Pledgor agrees that it will not at any time plead, claim or take
the benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay the
enforcement of this Agreement, or the absolute sale of the whole or any
part of the Collateral or the possession thereof by any purchaser at any
sale hereunder, and Pledgor waives the benefit of all such laws to the
extent it lawfully may do so. Pledgor agrees that it will not interfere
with any right, power and remedy of Pledgee provided for in this Agreement
or now or hereafter existing at law or in equity or by statute or
otherwise, or the exercise or beginning of the exercise by Pledgee of any
one or more such rights, powers or remedies. No failure or delay on the
part of Pledgee to exercise any such right, power or remedy, and no notice
or demand which may be given to or made upon Pledgor by Pledgee with
respect to any such remedies, shall operate as a waiver thereof, or limit
or impair Pledgee's right to take any action or to exercise any power or
remedy hereunder without notice or demand, or prejudice its rights as
against Pledgor in any respect.
(g) The proceeds of any disposition of Collateral shall be applied as
follows:
(i) to the payment of any and all expenses and fees (including
reasonable attorneys' fees and disbursements) incurred by Pledgee in
connection with the exercise of its rights and remedies hereunder,
including, without limitation, expenses and fees in connection with
preparing for sale and disposing of Collateral;
(ii) to the satisfaction of the Obligations in such order as
Pledgee may elect;
(iii) any other payment of any amount required to be paid by
Pledgee by law; and
(iv) upon termination of the commitments of Banks under the
Amended and Restated Facility Agreement, as a court of competent
jurisdiction may direct.
8. Exoneration of Pledgee. Other than the exercise of reasonable care in
the custody and preservation of the Collateral, Pledgee shall have no duty with
respect thereto. 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 it accords
its own property and, to the extent permitted by applicable law, shall not be
liable or responsible for any loss or damage to any of the Collateral or for any
diminution in the value thereof, by reason of the act or omission of any agent
or bailee selected by Pledgee in good faith.
9. Waiver. Pledgor hereby waives, releases and discharges, to the full
extent permitted by law, any right which it has or may have at law, in equity or
by statute, to require Pledgee to pursue or otherwise avail itself of any rights
or remedies which it may have against Pledgor, any other Borrower or any other
Person with respect to the payment of any Obligation or performance of the
terms, covenants and conditions of the Amended and Restated Facility Agreement
and Financing Documents or to pursue or exhaust any of its rights or remedies
with respect to any other security for the satisfaction of the Obligations or
the performance of the terms, covenants and conditions of the Amended and
Restated Facility Agreement. No delay on Pledgee's part in exercising any power
of sale or other right hereunder, and no notice or demand which may be given to
or made upon Pledgor by Pledgee with respect to any power of sale or other right
hereunder, shall constitute a waiver thereof, or limit or impair Pledgee's right
to take any action or to exercise any power of sale or any other right
hereunder, without notice or demand, or prejudice Pledgee's rights as against
Pledgor in any respect.
10. Assignment. Pledgor may not assign its rights or obligations under this
Agreement. In the event of assignment by the Pledgee or any of the Bank's rights
under the Amended and Restated Facility Agreement in accordance therewith, the
party to whom such assignment is made shall be entitled to the assignor's rights
hereunder. Pledgee may grant participations in its rights hereunder.
11. Termination. At such time as (a) all Obligations (other than indemnity
and other contingent obligations, not then due and payable, which survive
repayment of the Loans and the termination of the Amended and Restated Facility
Agreement) have been fully satisfied and indefeasibly paid, and (b) the Amended
and Restated Facility Agreement shall have been terminated, Pledgee shall
deliver to Pledgor the Collateral at the time subject to this Agreement and all
instruments of assignment executed in connection therewith, free and clear of
the Lien hereof and all of Pledgor's obligations hereunder shall thereupon
terminate; provided, that, the security interest in the Collateral shall
continue to be effective or reinstated, as the case may be, if any payment, or
any part thereof, of any Obligation is rescinded or must be restored by Pledgee
upon the bankruptcy or reorganization of Pledgor, or any other Borrower or
otherwise.
12. Release. Pledgor consents and agrees that Pledgee may at any time, or
from time to time, in Pledgee's sole discretion, exchange, release and/or
surrender all or any of the Collateral, or any part(s) thereof, by whomever
deposited, which is now or may hereafter be held by Pledgee in connection with
all or any of the Obligations; all in such manner and upon such terms as Pledgee
may deem proper, and without notice to or further assent from Pledgor, it being
hereby agreed that Pledgor shall be and remain bound by this Agreement,
irrespective of the existence, value or condition of any collateral and
notwithstanding (i) any such exchange, release and/or surrender and/or (ii) any
settlement, compromise, surrender, release, renewal or extension of any or all
of the Obligations, and/or (iii) that the Obligations may at any time or from
time to time exceed the aggregate principal amount outstanding pursuant to the
Amended and Restated Facility Agreement.
13. Expenses. Pledgor will reimburse Pledgee for all expenses (including
reasonable
expenses for legal services of every kind) of, or incidental to the enforcement
of any of the provisions of, this Agreement or any actual or attempted sale, or
any exchange, enforcement, collection, compromise or settlement of any of the
Collateral and for the care of the Collateral and defending or asserting the
rights and claims of Pledgee in respect of the Collateral, by litigation or
otherwise, including but not limited to expenses of insurance and the reasonable
fees and expenses of counsel for Pledgee. All such expenses shall be deemed
additional Obligations.
14. Miscellaneous.
(a) Pledgee may execute any of its duties hereunder by or through
agents or employees. Pledgee may consult with legal counsel and any action
taken or suffered in good faith in accordance with the advice of such
counsel shall be full justification and protection to it.
(b) Pledgee nor any of its officers, directors, employees, agents or
counsel shall be liable for any action lawfully taken or omitted to be
taken by it or them hereunder or in connection herewith or for any errors
of judgment, except for their own gross negligence or willful misconduct.
(c) This Agreement shall be binding upon Pledgor and its successors
and assigns, and shall inure to the benefit of, and be enforceable by,
Pledgee and its successors, transferees and assigns. None of the terms or
provisions of this Agreement may be waived, altered, modified or amended
except in writing duly signed for and on behalf of Pledgee and Pledgor.
(d) The rights and remedies herein expressly provided are cumulative
and may be exercised singly or concurrently and as often and in such order
as Pledgee deems expedient and are not exclusive of any rights and remedies
Pledgee would otherwise have whether by agreement or now or hereafter
existing provided by law.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE WITHOUT GIVING EFFECT
TO THE CHOICE OF LAWS THEREOF.
16. Jurisdiction. Pledgor (a) hereby irrevocably submits to the
jurisdiction of the state courts of the State of New York and to the
jurisdiction of the United States District Court for the Southern District of
New York, for the purpose of any suit, action or other proceeding arising out of
or based upon this Agreement or the subject matter hereof brought by Pledgee,
any of its successors or assigns, (b) hereby waives, and agrees not to assert,
by way of motion, as a defense, or otherwise, in any such suit, action or
proceeding, any claim that he is not subject personally to the jurisdiction of
the above-named courts, that the Collateral is exempt or immune from attachment
or execution, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that this
Agreement or the subject
matter hereof may not be enforced in or by such court, (c) hereby waives and
agrees not to seek any review of judgment of any such New York state or federal
court by any court of any other jurisdiction which may be called upon to grant
an enforcement of such judgment and (d) hereby waives, to the fullest extent
permitted by law, and agrees not to assert, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages. Pledgor hereby consents
to service of process by registered mail at the address at which notices are to
be given. Pledgor agrees that its submission to jurisdiction and its consent to
service of process by mail are made for the express benefit of Pledgee. Final
judgment against Pledgor in any such action, suit or proceeding may be enforced
in other jurisdictions by suit, action or proceeding on the judgment, or in any
other manner provided by or pursuant to the laws of such other jurisdiction;
provided, however, that Pledgee or any Banks may at its option bring suit, or
institute other judicial proceedings, against Pledgor in any state or federal
court of the United States or of any country or place where Pledgor may be found
or as required by applicable law, rules and regulations.
17. Further Assurances; Pledgee May Perform.
(a) At Pledgor's expense, Pledgor will do all such acts, and will
furnish to Pledgee all such financing statements, certificates, legal
opinions and other documents and will do or cause to be done all such other
things as Pledgee may reasonably request from time to time in order to give
full effect to this Agreement and to secure the rights intended to be
granted hereunder to Pledgee. To the extent permitted by applicable law,
Pledgor hereby authorizes Pledgee to execute and file, in the name of
Pledgor or otherwise, Uniform Commercial Code financing statements (which
may be photocopies of this Agreement) which Pledgee in its sole discretion
may deem necessary or appropriate.
(b) If Pledgor fails to perform any act required by this Agreement,
Pledgee may perform, or cause performance of, such act, and the expenses of
Pledgee incurred in connection therewith shall be governed by Section 13
hereof.
18. Notices. Except as otherwise provided herein, any notice required
hereunder shall be in writing, and shall be deemed to have been validly served,
given or delivered upon receipt after transmittal by hand or by Federal Express
or similar service, or five business days after deposit in the United States
mails, registered first class mail, with proper postage prepaid, and addressed
to the party to be notified at the following addresses (or such other address as
such party shall designate in a notice delivered to the other party hereunder):
(a) If to Pledgee, at
The Governor and Company of
the Bank of Scotland
Xxx Xxxxx
Xxxxxxxxx
XX0 0XX
Attention: The Chief Manager
with copies to:
Xxxxxx Xxxxxx Xxxxx.
0 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx XX0 0XX
Attention: Xxxxxx Xxxx
and
Golenbock, Eiseman, Assor, Xxxx & Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
(b) If to Pledgor, at
Berkeley (USA) Holdings Limited
c/o Berkeley International Capital Limited
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:
with copies to:
Berkeley International Capital Corporation
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Any notice required to be delivered to Pledgee shall be delivered to it in
accordance with the provisions hereof at the addresses specified herein and in
the Amended and Restated Facility Agreement, if different. Failure to comply
with the provisions set forth above with respect to the delivery of copies shall
not impair the validity of any notice otherwise complying with the terms hereof.
19. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall not invalidate 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.
20. Conflicts. Concurrent with the execution of this Agreement, Pledgor has
entered into, executed and delivered one or more other documents, agreement
and/or instruments in favor of and for the benefit of Pledgee to secure
Pledgor's obligations to Pledgee. This Agreement is in addition to and not in
substitution of any of such agreements entered into by the parties under English
law, including, but not limited to a Deed of Charge. If any term or provision of
this Agreement or the application thereof shall, directly conflict with the
terms and provisions of the Deed of Charge, the terms and provisions of the Deed
of Charge shall control such matter.
21. Waiver of Jury Trial. PLEDGOR, TO THE EXTENT PERMITTED BY LAW, WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, BETWEEN PLEDGEE AND PLEDGOR ARISING OUT OF, IN
CONNECTION WITH, RELATING TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, ANY NOTE, GUARANTEE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION THEREWITH
OR THE TRANSACTIONS RELATED THERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Stock Pledge
Agreement to be duly executed as of the date first above written.
BERKELEY (USA) HOLDINGS LIMITED
By:_________________________________________
Name:
Title:
THE GOVERNOR AND COMPANY OF
THE BANK OF SCOTLAND
By:_________________________________________
Name:
Title:
SCHEDULE I
PLEDGED SHARES
Class of Number of Certificate
Issuer Shares Number(s)
Berkeley Capital
Management
STOCK POWER
For value received, BERKELEY (USA) HOLDINGS LIMITED hereby sells, assigns and
irrevocably transfers to The Governor and Company of the Bank of Scotland ______
shares of Common Stock of Berkeley Capital Management, a California company,
represented by Certificate No(s). _______, standing in the name of the
undersigned on the books of said company.
The undersigned hereby irrevocably constitutes and appoints _______________
_________________________ attorney to transfer the said stock on the books of
said company, with full power of substitution in the premises.
Power is given to the holder hereof to fill in any all blanks in this
instrument.
The undersigned ratifies and confirms all acts that said attorney or any
substitute(s) under this power shall lawfully do by virtue hereof.
Dated as of __________ ___, ____.
BERKELEY (USA) HOLDINGS LIMITED
By: _________________________
Name:
Title:
