Exhibit 4.8
PLEDGE AGREEMENT
This Pledge Agreement (this "AGREEMENT") is entered into as of
September 12, 1997, between WESTERN PACIFIC AIRLINES, INC., whose address for
notice is 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxx Xxxxxxx, Xxxxxxxx, 00000
("BORROWER"), and XXXX PETROLEUM CORPORATION, whose address for notice is 0000
Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, 00000 and GFI COMPANY, whose address for
notice is 3753 Xxxxxx Xxxxxx Parkway, Suite 200, Las Vegas, Nevada, 89015
(collectively, ("SECURED PARTY").
1. Borrower hereby pledges and assigns to Secured Party, and grants to
Secured Party a security interest in, all of its rights (including, without
limitation, rights of withdrawal), titles, and interests in and to (a) Account
No. 000-0-000000 (the "ACCOUNT") maintained at The Chase Manhattan Bank, N.A.
(the "CLEARING BANK"), (b) all instruments (including, without limitation,
commercial paper and certificates of deposit), securities (certificated and
uncertificated), documents, money, general intangibles and other investments
held in or relating to the Account, (1) whether now owned or hereafter acquired,
(2) whether now or hereafter on deposit or held therein, and (3) whether
acquired in the name of Debtor, in the name of Clearing Bank, as agent,
custodian, or nominee of Debtor, or otherwise, and (c) all general intangibles,
rights and claims relating to, interests in, and proceeds of all or any of the
foregoing, whether now existing or hereafter arising (collectively, the
"COLLATERAL").
2. The pledge and security interest herein granted are given to secure
payment of the indebtedness evidenced by the promissory note dated September 10,
1997, executed by Borrower payable to the order of Secured Party in the
principal amount of $10,000,000 (the "NOTE"), and the performance of all
obligations of Borrower arising under the Note, all documents now or hereafter
executed to evidence or secure the indebtedness evidenced by the Note and all
modifications, substitutions for, and renewals or extensions of the foregoing
(collectively with this Pledge Agreement, the "LOAN DOCUMENTS"), and all
interest, charges, expenses, and attorneys' or other fees and any other costs
incurred by Secured Party in connection with the execution, administration or
enforcement of Secured Party's rights and remedies hereunder, or under any other
Loan Document.
The obligations referenced in Sections 2.(a) are collectively called the
"OBLIGATIONS".
3. (a) Borrower represents and warrants that (1) the Collateral is duly
and validly pledged to Secured Party in accordance with law, (2) Borrower has
good title to the Collateral, free and clear of all claims, mortgages, pledges,
liens, encumbrances and security interests of every nature whatsoever, and
(3) no consent or approval of any person, entity or governmental or regulatory
authority, was or is necessary to the validity of this pledge.
(b) Borrower shall faithfully preserve and protect Secured Party's
security interest in the Collateral and the proceeds thereof and shall do all
such acts and things and execute and
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deliver all such documents and instruments, including without limitation further
pledges, security agreements, notices, assignments, financing statements and
continuation statements, as Secured Party may request from time to time to
preserve, protect and perfect such security interest.
(c) Borrower shall not permit the Collateral or any dividends,
distributions or interest therefrom or thereon to be subject to any liens,
security interests and adverse claims other than Secured Party's security
interest. Borrower shall defend Secured Party's right, title, lien and security
interest in and to the Collateral against the claims and demands of all persons
whomsoever. Notwithstanding the foregoing, Borrower may pledge its interest in
the Collateral to Xxxx Petroleum Corporation and GFI Company, provided that such
parties' interests therein are subordinate to Secured Party's in all respects.
4. Secured Party may cause all or any of the Collateral to be transferred
to or registered in its name or the name of its nominee. Secured Party may, for
and in the name of Borrower, and is hereby irrevocably authorized to, execute
endorsements, assignments or other instruments of conveyance or transfer with
respect to Collateral and give such instructions to Clearing Bank, any issuer of
the Collateral, and any other person or entity with regard to the Collateral as
it shall deem appropriate in connection herewith. Borrower hereby irrevocably
appoints Secured Party as Borrower's attorney-in-fact for the purposes of
carrying out the provisions of this Agreement and the Loan Documents and taking
any action and executing any instrument which it may deem necessary or advisable
to accomplish the purposes hereof or thereof; such appointment is coupled with
an interest and is irrevocable. Secured Party shall not be obligated to inform
Borrower of any changes in the Collateral or rights relating thereto, or to sell
or otherwise dispose of the Collateral, and Secured Party's failure to take any
such action shall not be deemed a failure to exercise reasonable care of the
Collateral, even if the value of the Collateral has declined or is declining.
5. If the Obligations are not paid or performed when due, whether by
acceleration or otherwise, or any default occurs under the Loan Documents,
Secured Party may, without notice to Borrower and in addition to all other
rights and remedies it may have, (a) instruct Clearing Bank to distribute the
Collateral and any of the proceeds thereof and all funds on deposit in the
Account to Secured Party, and (b) apply such funds to the payment and
performance of the Obligations, all at such times, in such order, and in such
amounts as Secured Party in its discretion determines. Borrower shall not be
credited with any proceeds of sale of any Collateral until cash payment thereof
has actually been received by Secured Party. No demand, advertisement or notice
shall be required in connection with any sale or other disposition of the
Collateral, unless notice of the event in question cannot be effectively waived
before a default, in which case, five-days' prior written notice thereof shall
be reasonable notice. Secured Party 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.
6. The remedies provided herein are not exclusive, but are cumulative and
in addition to all other remedies in favor of Secured Party existing at law or
in equity. No delay on the part of
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Secured Party or of any holder of the Obligations in exercising any of its
options, powers or rights, or partial or single exercise thereof, shall
constitute a waiver thereof.
7. The lien and security interest imposed hereby shall remain in effect
until they are released by Secured Party. Upon payment and performance in full
of the Obligations, Secured Party shall release and assign the Collateral to
Borrower. The assignment by Secured Party to Borrower of the Collateral shall
be without representation or warranty of any nature and without recourse.
8. Any notice to Borrower may be given by facsimile transmission, by
certified mail, return receipt requested, or by delivery to Borrower at the
address specified above, or at such other address as Borrower may hereafter
designate in writing and given in like manner to Secured Party.
9. If Borrower comprises more than one person, each such person shall be
jointly and severally liable hereunder.
10. Borrower shall defend, indemnify and hold harmless Secured Party
against all losses, damages, liabilities, and expenses (including reasonable
attorneys' fees and expenses) suffered by it in connection with the pledge made
hereby; in addition, Borrower shall pay all expenses (including reasonable
attorneys' fees and expenses) incurred in connection with the enforcement or
attempted enforcement and/or perfection by Secured Party of the security
interest granted hereby.
11. Any waiver, consent or approval of any kind or character on the part
of Secured Party of any 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. This
Agreement and the rights and obligations of Secured Party and Borrower hereunder
shall be construed in accordance with and governed by Texas law, and shall bind
and inure to the benefit of Borrower and Secured Party and their respective
heirs, legal representatives, successors and assigns and all subsequent holders
of the Obligations.
12. 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.
13. This Agreement is in addition to and not in limitation of any other
agreement between the parties. If any conflict exists between the provisions of
this Agreement and those of any other such agreement, the provisions of this
Agreement shall prevail.
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Executed as of the date first written above.
WESTERN PACIFIC AIRLINES, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President/CFO
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XXXX PETROLEUM CORPORATION
By: /s/Xxxx Xxxxx
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Name: Xxxx Xxxxx Xx.
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Title: Executive Vice President
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GFI COMPANY
By: /s/Xxxxxx Xxxxxxx XX
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Name: Xxxxxx Xxxxxxx XX
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Title:
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