Exhibit 3
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NATIONSBANK OF TEXAS, N.A.
FORM OF
PLEDGE AGREEMENT
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Date November 22, 1994
Between: and
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BANK: (SECURED PARTY) PLEDGOR:
NATIONSBANK OF TEXAS, N.A. __________________________
000 Xxxx, 00xx Xxxxx 0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000 Xxxxx 0000
Xxxxxx, Xxxxx 00000
(address including county)
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Pledgor Is [_] Individual [_] Corporation [x] Partnership [_] Other _____
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Address is Pledgor's: [_] Residence [X] Place of Business [_] Chief Executive
Office if more
than one place
of business
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(This Agreement contains some provisions preceded by boxes. Xxxx only those
boxes beside provisions which will be applicable to this transaction. A box
which is not marked means that the provision beside it is not applicable to this
transaction.)
A. Security Interest. For good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Pledgor pledge, assign and grant to
Bank a security interest and lien in the Collateral (hereinafter defined) to
secure the payment and performance of the Obligation (hereinafter defined).
B. Collateral. The security interest is granted in the following
("Collateral"):
1.
[X] SPECIFIC SECURITIES: The following securities, together with all
securities hereafter delivered to Bank in substitution for or in addition
to those securities: _______ shares of common stock, $.10 par value, of
Michaels Stores, Inc. The parties acknowledge that Pledgor may from time
to time provide additional shares of stock of Michaels Stores, Inc. or
Sterling Software, Inc. as collateral hereunder.
[_] AGENCY ACCOUNT: All of Pledgor's property now or hereafter held in
account(s) number ("Account") by the Trust Group of NationsBank of Texas,
N.A. ("Agent") as agent or custodian for Pledgor under an agreement for
custody, investment management, investment advisory or similar services
between Pledgor and the Agent, specifically including but not limited to
all documents,
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instruments, ordinary goods, certificates of title, general intangibles,
chattel paper, mineral interests, certificated and uncertificated
securities, securities in book-entry form, mutual funds, U.S. government
and state obligations, deposit accounts and cash (but excluding collective
investment funds and anything construed as real property under applicable
state law).
[_] BROKERAGE ACCOUNT: All of Pledgor's property now or hereafter held by
__________________ ("Broker") in cash account number(s) ___________________
("Account") pursuant to the terms of any agreement for custody, investment
management, investment advisory or similar services between Broker and
Pledgor, specifically including but not limited to all documents,
instruments, general intangibles, certificated and uncertificated
securities, securities in book-entry form, mutual funds, U.S. government
and state obligations, deposit accounts and cash.
[_] OTHER:
2. Proceeds. All additions, substitutes and replacements for and proceeds of
the above Collateral (including all income and benefits resulting from
any of the above, such as dividends payable or distributable in cash,
property or stock; interest, premium and principal payments; redemption
proceeds and subscription rights; and shares or other proceeds of
conversions or splits of any securities in Collateral). Any securities
received by Pledgor which shall comprise such additions, substitutes and
replacements for, or proceeds of, the Collateral, shall be held in trust
for Bank and shall be delivered immediately to Bank. Any cash proceeds
shall be held in trust for Bank and upon request shall be delivered
immediately to Bank.
3. Deposit Accounts. The balance of every deposit account of Pledgor
maintained with the Bank and any other claim of Pledgor against Bank, now
or hereafter existing, liquidated or unliquidated, and all money,
instruments, securities, documents, chattel paper, credits, claims,
demands, income, and any other property, rights and interests of Pledgor
which at any time shall come into the possession or custody or under the
control of Bank or any of its agents, affiliates or correspondents, for
any purpose, and the proceeds of any thereof. Bank shall be deemed to have
possession of any of the Collateral in transit to or set apart for it or
any of its agents, affiliates or correspondents.
It is contemplated by the parties that Pledgor shall provide additional
collateral from time to time hereunder as additional security for the
Obligation, and may from time to time with the prior written consent of Bank
sell or otherwise dispose of any Collateral provided that Pledgor provides Bank
with substitute collateral. At the time of each addition or substitution of
Collateral, the securities added or substituted shall be set forth on a Pledge
Certificate, substantially in the form of Schedule I attached hereto (the
"Pledge Certificate") delivered to Bank on or before any advances requested in
connection therewith shall be made and such additional and/or substituted
Collateral and the security interest granted to Bank therein shall be completed
to the satisfaction of Bank. All such additional and/or substituted Collateral
shall be Collateral for purposes of this Agreement, and shall secure the
Obligation in the same manner as the Collateral for which it is added to and/or
substituted.
C. Obligation
1. Description of Obligation. The following obligations ("Obligation") are
secured by this Agreement:
a. [_] All Debt: All debts, obligations, liabilities and agreements of
Pledgor to Bank, now or hereafter existing, arising directly or indirectly
between Pledgor and Bank whether absolute or contingent, joint or several,
secured or unsecured, due or not due, liquidated or unliquidated, arising
by operation of law or otherwise, and all renewals, extensions or
rearrangements of any of the above;
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[x] Promissory Note: All debt arising under promissory note dated
November 22, 1994 in the principal face amount of $__________ executed by
Pledgor and payable to the order of Bank, and any and all renewals,
extensions and rearrangements thereof.
b. All costs incurred by Bank to obtain, preserve, perfect and enforce
this Agreement and maintain, preserve, collect and realize upon the
Collateral;
c. All expenses of the Bank, including fees and expenses of the Bank's
counsel, incident to the enforcement of payment of the Obligation;
d. All amounts which may be owed by Pledgor to Bank pursuant to that
certain Guaranty Agreement of even date herewith by Pledgor and certain
other guarantors named therein with respect to indebtedness of Maverick
Entrepreneurs Fund, Ltd.; and
e. Interest on the above amounts as agreed between Bank and Pledgor.
In the event any amount paid to Bank on any Obligation is subsequently recovered
from Bank in or as a result of any bankruptcy, insolvency or fraudulent
conveyance proceeding involving an obligor of the Obligation other than Pledgor,
Pledgor shall be liable to Bank for the amounts so recovered up to the fair
market value of the Collateral whether or not the Collateral has been released
or the security interest terminated. In the event the Collateral has been
released or the security interest terminated, the fair market value of the
Collateral shall be determined, at Bank's option, as of the date the Collateral
was released, the security interest terminated, or said amounts were recovered.
2. Use of Proceeds. The proceeds of any indebtedness or obligation secured by
the Collateral [x] may be [_] will not be (check one box) used directly or
indirectly to purchase or carry any "margin stock" as that term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, or extend
credit to or invest in other parties for the purpose of purchasing or carrying
any such "margin stock," or to reduce or retire any indebtedness incurred for
such purpose or otherwise in a manner which would violate Regulations G, T or U.
D. Pledgor's Warranties. Pledgor hereby represents and warrants to Bank as
follows:
1. Financing Statements. Except as may be noted by schedule attached hereto and
incorporated herein by reference, no financing statement covering the Collateral
is or will be on file in any public office, except the financing statements
relating to this security interest, and no security interest, other than the one
herein created, has attached or been perfected in the Collateral or any part
thereof.
2. Ownership. Pledgor owns, or will use the proceeds of any loans by Bank to
become the owner of, the Collateral free from any setoff, claim, restriction,
lien, security interest or encumbrance except liens for taxes not yet due and
payable and the security interest hereunder.
3. Claims of Pledgor on Collateral. All account debtors and other obligors whose
debts or obligations are part of the Collateral have no right to setoffs,
counterclaims or adjustments, and no defenses in connection therewith.
4. Power and Authority. Pledgor has full power and authority to make this
Agreement, and all necessary consents and approvals of any persons, entities,
governmental or regulatory authorities and securities exchanges have been
obtained to effectuate the validity of this Agreement.
5. Solvency of Pledgor. The fair market value of Pledgor's assets exceeds its
liabilities; Pledgor is currently paying its debts as the same become due; the
execution of this Agreement and the pledge of the Collateral
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hereunder will not render Pledgor insolvent; and Pledgor, in entering into this
Agreement and performing its obligations hereunder, has no intent to hinder,
delay or defraud any of its creditors.
E. Pledgor's Covenants. Until full payment and performance of all of the
Obligation and termination or expiration of any obligation or commitment of Bank
to make advances or loans to Borrower, unless Bank otherwise consents in
writing:
1. Obligation and This Agreement. Pledgor shall perform all of its agreements
herein and in any other agreements between it and Bank.
2. Ownership of Collateral. Pledgor shall defend the Coll ateral against all
claims and demands of all persons at any time claiming any interest therein
adverse to Bank. Pledgor shall keep the Collateral free from all liens and
security interests except those for taxes not yet due and payable and the
security interest hereby created.
3. Bank's Costs. Pledgor shall pay all costs necessary to obtain, preserve,
perfect, defend and enforce the security interest created by this Agreement,
collect the Obligation, and preserve, defend, enforce and collect the
Collateral, including but not limited to taxes, assessments, reasonable
attorney's fees, legal expenses and expenses of sales. Whether Collateral is or
is not in Bank's possession, and without any obligation to do so and without
waiving Pledgor's default for failure to make any such payment, Bank at its
option may pay any such costs and expenses and discharge encumbrances on
Collateral, and such payments shall be a part of the Obligation and bear
interest at the rate set out in the Obligation. Pledgor agrees to reimburse Bank
on demand for any costs so incurred.
4. Information and Inspection. Pledgor shall (i) promptly furnish Bank any
information with respect to Collateral requested by Bank that is otherwise
publicly available pursuant to reporting requirements under the Security
Exchange Act of 1934; (ii) allow Bank or its representatives to inspect and
copy, or furnish Bank or its representatives with copies of, all records
relating to the Collateral and the Obligation; and (iii) promptly furnish Bank
or its representatives with any other information Bank may reasonably request.
5. Additional Documents. Pledgor shall sign and deliver any papers furnished by
Bank which are necessary or desirable in the judgment of Bank to obtain,
maintain and perfect the security interest hereunder and to enable Bank to
comply with any federal or state law in order to obtain or perfect Bank's
interest in Collateral or to obtain proceeds of Collateral.
6. Right of Bank to Notify Debtors. At any time Pledgor is in default hereunder,
Bank may notify persons obligated on any Collateral to make payments directly to
Bank and Bank may take control of all proceeds of any Collateral. Until Bank
elects to exercise such rights, Pledgor, as agent of Bank, shall collect and
enforce all payments owed on Collateral.
7. Notice of Changes. Pledgor will notify Bank immediately of (i) a change in
Pledgor's place of business, or (ii) the occurrence of an event of default as
defined herein.
8. Possession of Collateral. Pledgor shall deliver a copy of this Agreement (or
other notice acceptable to Bank) to any Broker, financial intermediary, or any
other person in possession of any of the Collateral or on whose books the
interest of Pledgor in the Collateral appears, and such delivery shall
constitute notice to such person of Bank's security interest in the Collateral
and shall constitute Pledgor's instruction to such person to note the Bank's
security interest on their books and records, or deliver to Bank certificates or
other evidence of the Collateral promptly upon Bank's request. Pledgor will
deliver all investment securities and other instruments and documents which are
a part of the Collateral and in Pledgor's possession to Bank immediately, or if
hereafter acquired, immediately following acquisition, in a form suitable for
transfer by delivery or accompanied by duly executed instruments of transfer or
assignment in blank with signatures appropriately guaranteed in form and
substance suitable to Bank.
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9. Change of Name/Status. Pledgor shall give the Bank at least 30 days' prior
written notice of a name change, change in corporate status, use of any trade
name or engagement in any business in which it was not engaged on the date of
this Agreement.
10. Change of Partnership Agreement. Without the prior consent of Bank, Pledgor
shall not permit any amendment or modification of its Partnership Agreement or a
change in its general partner.
11. Borrowings. Pledgor shall not create, incur, assume or become liable in any
manner for any indebtedness (for borrowed money, deferred payment for the
purchase of assets, lease payments, as surety or guarantor for the debt of
another, or otherwise) except for debt incurred in the ordinary course of
Pledgor's business.
12. Power of Attorney. Pledgor appoints Bank and any officer thereof as
Pledgor's attorney-in-fact with full power in Pledgor's name and on Pledgor's
behalf to do following an event of default hereunder every act which Pledgor is
obligated to do or may be required to do hereunder; however, nothing in this
paragraph shall be construed to obligate Bank to take any action hereunder nor
shall Bank be liable to Pledgor for failure to take any action hereunder. This
appointment shall be deemed a power coupled with an interest and shall not be
terminable as long as the Obligation is outstanding and shall not terminate on
the disability or incompetence of Pledgor. Without limiting the generality of
the foregoing, 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
Pledgor representing any dividend, interest payment or other distribution
payable in respect of the Collateral or any part thereof.
13. Other Parties and Other Collateral. No renewal or extensions of or any other
indulgence with respect to the Obligation or any part thereof, no modification
of the documents(s) evidencing the Obligation, no release of any security, no
release of any person (including any maker, indorser, guarantor or surety)
liable on the Obligation, no delay in enforcement of payment, and no delay or
omission or lack of diligence or care in exercising any right or power with
respect to the Obligation or any security therefor or guaranty thereof or under
this Agreement shall in any manner impair or affect the rights of Bank under any
law, hereunder, or under any other agreement pertaining to the Collateral. Bank
need not file suit or assert a claim for personal judgment against any person
for any part of the Obligation or seek to realize upon any other security for
the Obligation, before foreclosing or otherwise realizing upon the Collateral.
Pledgor waives any right that can be waived to the benefit of or to require or
control application of any other security or proceeds thereof, and agrees that
Bank shall have no duty or obligation to Pledgor to apply to the Obligation any
such other security or proceeds thereof.
14. Waivers by Pledgor. Except as may be required hereunder or in any other
document with respect to the Obligation, Pledgor waives notice of the creation,
advance, increase, existence, extension or renewal of, and of any indulgence
with respect to, the Obligation; waives presentment, demand, notice of dishonor,
and protest; waives notice of the amount of the Obligation outstanding at any
time, notice of any change in financial condition of any person liable for the
Obligation or any part thereof, notice of any event of default, notice of intent
to accelerate, notice of acceleration and all other notices respecting the
Obligation; and agrees that maturity of the Obligation and any part thereof may
be accelerated, extended or renewed one or more times by Bank in its discretion,
without notice to Pledgor. Pledgor waives any right to require that any action
be brought against any other person (including any other pledgor) or to require
that resort be had to any other security or to any balance of any deposit
account. Pledgor further waives any right of subrogation or to enforce any right
of action against any other pledgor or obligor until the Obligation is paid in
full.
15. Additional Provisions. If one or more Riders to this Agreement are executed
by Pledgor, the covenants and provisions of each such Rider shall be
incorporated by reference into this Agreement. (check applicable boxes)
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[_] Collateral Maintenance Rider: Pledgor agrees to maintain collateral in
accordance with the terms of the Collateral Maintenance Rider attached
hereto and made a part hereof for all purposes.
[x] Rule 144 Rider: The Collateral is comprised in whole or in part of
Control and/or Restricted Stock, which shall be subject to the additional
terms and provisions described on the Rule 144 Rider attached hereto and made
a part hereof for all purposes.
F. Rights and Powers of Bank
1. General. Bank, before or after default, without liability to Pledgor may:
take control of proceeds, including stock received as dividends or by reason of
stock splits; release Collateral in its possession to any Pledgor, temporarily
or otherwise; require additional Collateral; reject as unsatisfactory any
property hereafter offered by Pledgor as Collateral; take control of funds
generated by the Collateral, such as cash dividends, interest and proceeds, and
use same to reduce any part of the Obligation and exercise all other rights
which an owner of such Collateral may exercise, except the right to vote or
dispose of Collateral before an event of default; and at any time transfer any
of the Collateral or evidence thereof into its own name or that of its nominee.
Bank shall not be liable for failure to collect any account or instruments, or
for any act or omission on the part of Bank, its officers, agents or employees,
except for its or their own willful misconduct or gross negligence. The
foregoing rights and powers of Bank will be in addition to, and not a limitation
upon, any rights and powers of Bank given by law, elsewhere in this Agreement,
or otherwise.
2. Convertible Collateral. Bank may present for conversion any Collateral which
is convertible into any other instrument or investment security or a combination
thereof with cash, but Bank shall not have any duty to present for conversion
any Collateral unless it shall have received from Pledgor detailed written
instructions to that effect at a time reasonably far in advance of the final
conversion date to make such conversion possible.
G. Default.
1. Event of Default. An event of default shall occur if Pledgor or any other
obligor on all or part of the Obligation shall fail following any applicable
cure period to timely and properly pay or observe, keep or perform any term,
covenant, agreement or condition in this Agreement or in any other agreement
between Pledgor and Bank or between Bank and any other obligor on the
Obligation, including in any other note or instrument, loan agreement, security
agreement, deed of trust, mortgage, promissory note, assignment or other
agreement or instrument concerning the Obligation.
2. Rights and Remedies. If any event of default shall occur, then, in each and
every such case, Bank may, without (a) presentment, demand, or protest, (b)
notice of default, dishonor, demand, non-payment, or protest, (c) notice of
intent to accelerate all or any part of the Obligation, (d) notice of
acceleration of all or any part of the Obligation, or (e) notice of any other
kind, all of which Pledgor hereby expressly waives (except for any notice
required under this Agreement, any other loan document or which may not be
waived under applicable law), at any time thereafter exercise and/or enforce any
of the following rights and remedies, at Bank's option:
i. Acceleration. The Obligation shall, at Bank's option, become immediately
due and payable, and the obligation, if any, of Bank to permit further
borrowings under the Obligation shall at Bank's option immediately cease and
terminate.
ii. Liquidation of Collateral. Sell, or instruct any Agent or Broker to sell,
all or any part of the Collateral in a public or private sale, direct any
Agent or Broker to liquidate all or any part of any Account and deliver all
proceeds thereof to Bank, and apply all proceeds to the payment of any or all
of the Obligation in such order and manner as Bank shall, in its discretion,
choose.
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iii. Uniform Commercial Code. All of the rights, powers and remedies of a
secured creditor under the Uniform Commercial Code as adopted in the
jurisdiction to which Bank is subject under this Agreement (the "UCC").
iv. Right of Set Off. Without notice or demand to Pledgor, set off and
apply against any and all of the Obligation any and all deposits (general
or special, time or demand, provisional or final) and any other
indebtedness, at any time held or owing by the Bank to or for the credit
of the account of Pledgor.
Pledgor specifically understands and agrees that any sale by Bank of all
or part of the Collateral pursuant to tnk terms of this Agreement may be
effected by Bank at times and in manners which could result in the
proceeds of such sale as being significantly and materially less than
might have been received if such sale had occurred at different times or
in different manners, and Pledgor hereby releases Bank and its officers
and representatives from and against any and all obligations and
liabilities arising out of or related to the timing or manner of any such
sale.
If, in the opinion of Bank, there is any question that a public sale or
distribution of any Collateral will violate any state or federal
securities law, Bank may offer and sell such Collateral in a transaction
exempt from registration under federal securities law, and any such sale
made in good faith by Bank shall be deemed "commercially reasonable."
H. General
1. Parties Bound. Bank's rights hereunder shall inure to the benefit of its
successors and assigns, and in the event of any assignment or transfer of any of
the Obligation or the Collateral, Bank thereafter shall be fully discharged from
any responsibility with respect to the Collateral so assigned or transferred,
but Bank shall retain all rights and powers hereby given with respect to any of
the Obligation or Collateral not so assigned or transferred. All
representations, warranties and agreements of Pledgor are joint and several and
all shall be binding upon the successors and assigns of Pledgor.
2. Waiver. No delay of Bank in exercising any power or right shall operate as a
waiver thereof; nor shall any single or partial exercise of any power or right
preclude other or further exercise thereof or the exercise of any other power or
right. No waiver by Bank of any right hereunder or of any default by Pledgor
shall be binding upon Bank unless in writing, and no failure by Bank to exercise
any power or right hereunder or waiver of any default by Pledgor shall operate
as a waiver of any other or further exercise of such right or power or of any
further default. Each right, power and remedy of Bank as provided for herein or
in any of the loan documents, or which shall now or hereafter exist at law or in
equity or by statute or otherwise, shall be cumulative and concurrent and shall
be in addition to every other such right, power or remedy. The exercise or
beginning of the exercise by Bank of any one or more of such rights, powers or
remedies shall not preclude the simultaneous or later exercise by Bank of any or
all other such rights, powers or remedies.
3. Agreement Continuing. This Agreement shall constitute a continuing agreement,
applying to all future as well as existing transactions, whether or not of the
character contemplated at the date of this Agreement, and if all transactions
between Bank and Pledgor shall be closed at any time, shall be equally
applicable to any new transactions thereafter. Provisions of this Agreement,
unless by their terms exclusive, shall be in addition to other agreements
between the parties. Time is of the essence of this Agreement.
4. Definitions. Unless the context indicates otherwise, definitions in the UCC
apply to words and phrases in this Agreement; if a conflict exists between UCC
definitions and words and phrases herein, UCC definitions shall apply.
5. Notice. Except as otherwise provided in this Agreement, any notices of
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given (i) the day it is personally delivered, if delivered
by hand or expedited delivery service, or (ii) five days after it is mailed, if
sent by certified or registered mail.
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7. Modifications. No provision hereof shall be modified or limited except by a
written agreement expressly referring hereto and to the provisions so modified
or limited and signed by Pledgor and Bank. The provisions of this Agreement
shall not be modified or limited by course of conduct or usage of trade.
8. Partial Invalidity. The unenforceability or invalidity of any provision of
this Agreement shall not affect the enforceability or validity of any other
provision herein and the invalidity or unenforceability of any provision of any
loan document to any person or circumstance shall not affect the enforceability
or validity of such provision as it may apply to other persons or circumstances.
9. Gender and Number. Where appropriate, the use of one gender shall be
construed to include the others or any of them; and the singular number shall be
construed to include the plural, and vice versa.
10. Applicable Law and Venue. This Agreement has been delivered in the State of
Texas and shall be construed in accordance with the laws of the State of Texas
(except for its conflict of laws principles). It is performable by Pledgor in
the county or city of Bank's address set out above and Pledgor expressly waives
any objection as to venue in any such location. Wherever possible each provision
of this Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Agreement.
11. Financing Statement. To the extent permitted by applicable law, a carbon,
photographic or other reproduction of this Agreement or any financing statement
covering the Collateral shall be sufficient as a financing statement.
12. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be considered to be an original, but all of which shall
constitute one and the same instrument. As used herein "this Agreement" shall
include all attachments and addenda.
13. BINDING ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM BASED ON
OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE
APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION
OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.
(J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY
INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS
AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES
IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF DALLAS,
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TEXAS AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF
J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION,
THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION
HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION;
FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO
EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
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B. RESERVATIONS OF RIGHTS NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO (I)
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LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION
OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE A WAIVER
BY THE BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE BANK
HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO)
SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES
SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF OR THE APPOINTMENT OF A
RECEIVER. THE BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
AGREEMENT. AT BANK'S OPTION, FORECLOSURE UNDER A DEED OF TRUST OR MORTGAGE
MAY BE ACCOMPLISHED BY ANY OF THE FOLLOWING: THE EXERCISE OF A POWER OF SALE
UNDER THE DEED OF TRUST OR MORTGAGE, OR BY JUDICIAL SALE UNDER THE DEED OF
TRUST OR MORTGAGE, OR BY JUDICIAL FORECLOSURE. NEITHER THIS EXERCISE OF SELF
HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR
FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER
OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES.
14. NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal by their duly authorized representatives as of the date
first above written.
BANK/SECURED PARTY: PLEDGOR:
NationsBank of Texas, N.A. ----------------------------
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By: By:
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Xxxxx X. Xxxxxx ---------------------
Vice President, Private Banking ---------------------
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SCHEDULE I
PLEDGE CERTIFICATE
Reference is hereby made to that certain Pledge Agreement dated as of
November 22, 1994 ("Pledge Agreement"), between ________________________________
("Pledgor"), and NationsBank of Texas, N.A., a national banking association
("Bank"). This Pledge Certificate is delivered pursuant to Paragraph B of the
Pledge Agreement. All capitalized terms used and not otherwise defined herein
shall have their respective meanings as set forth in the Pledge Agreement.
Pledgor hereby certifies that concurrently with the delivery of this
Pledge Certificate,
[_] Pledgor is delivering to Bank the following items of Collateral as
additional Collateral for the Obligation (collectively, the "Additional
Collateral"):
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[_] Pledgor is selling or otherwise disposing of the following items
of Collateral:
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and Pledgor is delivering to Bank the following items of Collateral being
substituted therefor:
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(collectively, the "Substituted Collateral").
Pledgor hereby acknowledges that Pledgor has granted to Bank a security
interest in the Additional Collateral and/or Substituted Collateral pursuant to
the Pledge Agreement to secure the Obligation and that the Collateral covered by
the Pledge Agreement includes, without limitation, the Substituted Collateral
and Additional Collateral. Pledgor hereby represents and warrants that all of
the representations and warranties contained in the Pledge Agreement are true
and correct, including with respect to the Additional Collateral and Substituted
Collateral, on the date hereof as though made as of the date hereof.
EXECUTED this _____ day of ______________________, 19___.
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By:
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Name:
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Title:
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