STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement ("Pledge Agreement") is made by Fidelity
Leasing, Inc. ("Pledgor") and delivered to First Union National Bank, as Agent
for the ratable benefit of Lenders (in such capacity, "Pledgee") and is given
and is intended to provide additional security for all indebtedness, obligations
and liabilities of Pledgor to Agent and the Lenders ("Obligations") under a
certain Amended and Restated Loan and Security Agreement dated September 30,
1998 by and among Pledgor and Pledgee and the other parties named therein (as
the same may be amended or modified from time to time, most recently by
amendment even date herewith, the "Loan Agreement").
Pledgor, intending to be legally bound hereby, and for other good and
sufficient consideration, the receipt of which is hereby acknowledged, does
hereby assign, pledge, hypothecate, deliver and set over to Pledgee, its
successors and assigns, the property described in the Schedule of Collateral
attached hereto and made part hereof, including all additions, exchanges,
replacements and substitutions therefor, dividends and distributions with
respect thereto, and the proceeds thereof, (collectively, the "Collateral") and
Pledgor hereby grants to Pledgee a continuing lien and security interest in the
Collateral as collateral security for the payment and performance of the
Obligations.
(1) Pledgor hereby represents and warrants that:
(a) Except as pledged herein, Pledgor has not sold, assigned,
transferred, pledged or granted any option or security interest in or otherwise
hypothecated the Collateral in any manner whatsoever and the Collateral is
pledged herewith free and clear of any and all liens, security interests,
encumbrances, claims, pledges, restrictions, legends, and options;
(b) Pledgor has the full power and authority to execute,
deliver, and perform under this Pledge Agreement and to pledge the Collateral
hereunder;
(c) The execution and delivery of this Pledge Agreement by
Pledgor shall not (i) violate or result in a default or breach (immediately or
with the passage of time) under any contract, agreement or instrument to which
Pledgor is a party or by which Pledgor is bound, (ii) violate or result in a
default or breach under any order, decree, award, injunction, judgment, law,
regulation or rule, (iii) cause or result in the imposition or creation of any
lien upon any property of Pledgor, or (iv) violate or result in a breach of the
articles of incorporation or bylaws of Pledgor;
(d) This Pledge Agreement constitutes the valid and binding
obligation of Pledgor, enforceable in accordance with its terms;
(e) The Collateral has been duly and validly authorized and
issued by the issuer thereof and such Collateral is fully paid for and
non-assessable; and
(f) Pledgor is delivering to Pledgee all certificates
representing or evidencing the Collateral, accompanied by duly executed
instruments of transfer or assignments in blank, to be held by Pledgee in
accordance with the terms hereof.
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(2) This Pledge Agreement shall continue in effect to secure all
Obligations from time to time incurred or arising and may not be revoked or
terminated.
(3) If an Event of Default occurs under and as defined in Loan
Agreement, then Pledgee may, at its sole option, exercise from time to time with
respect to the Collateral, any and/or all rights and remedies available to it
hereunder, under the Uniform Commercial Code, or otherwise available to it, at
law or in equity, including without limitation, the right to dispose of the
Collateral at public or private sale(s) or other proceedings, and Pledgor agrees
that, if permitted by law, Pledgee or its nominee may become the purchaser at
any such sale(s).
(4)(a) In addition to all other rights granted to Pledgee herein or
otherwise available at law or in equity, Pledgee shall have the following
rights, each of which may be exercised at Pledgee's sole discretion (but without
any obligation to do so), at any time following the occurrence of an Event of
Default under and as defined in the Loan Agreement, without further consent of
Pledgor, upon written notice from Pledgee to Pledgor that Pledgee has exercised
its rights hereunder: (i) to transfer the whole or any part of the Collateral
into the name of itself or its nominee or to conduct a sale of the Collateral
pursuant to the Uniform Commercial Code as enacted in Pennsylvania or pursuant
to any other applicable law; (ii) to vote the Collateral; (iii) to notify the
persons obligated on any of the Collateral to make payment to Pledgee of any
amounts due or to become due thereon; and (iv) to release, surrender or exchange
any of the Collateral at any time, or to compromise any dispute with respect to
the same. Pledgee may proceed against the Collateral, or any other collateral
securing the Obligations (as defined herein and under the Loan Agreement), in
any order, and against Pledgor and any other obligors, jointly and/or severally,
in any order to satisfy the Obligations (as defined herein and under the Loan
Agreement). Pledgor waives and releases any right to require Pledgee to first
collect any of the Obligations secured hereby from any other collateral of
Pledgor or any other party securing the Obligations (as defined herein and under
the Loan Agreement) under any theory of marshalling of assets, or otherwise. All
rights and remedies of Pledgee are cumulative, not alternative.
(b) Pledgor hereby appoints Pledgee its attorney-in-fact to arrange,
at Pledgee's option, (i) to effectuate the transfer of the Collateral on the
books of the issuer thereof to the name of Pledgee or to the name of Pledgee's
nominee, designee or assignee (ii) to endorse and collect checks payable to
Pledgor representing distributions or other payments on the Collateral, and
(iii) to carry out the terms and provisions hereof.
(5) The proceeds of any Collateral received by Pledgee at any time,
whether from the sale of Collateral or otherwise, may be applied to or on
account of the Obligations and in such order as Pledgee may elect. In addition,
Pledgee may, in its discretion, apply any such proceeds to or on account of the
payment of all costs and expenses (including, without limitation, attorneys'
fees and legal expenses) which may be incurred by Pledgee in the enforcement,
protection, preservation or defense of Pledgee's rights hereunder, including
without limitation, the custody, preservation, use, operation, preparation for
sale or sale of the Collateral.
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(6) Pledgor recognizes that Pledgee may be unable to effect, or may
effect only after such delay which would adversely affect the value that might
be realized from the Collateral, a public sale of all or part of the Collateral
by reason of certain prohibitions contained in the Securities Act of 1933, as
amended, and may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obliged to agree, among other things,
to acquire such securities for their own account, for investment and not with a
view to the distribution or resale thereof. Pledgor agrees that any such private
sale may be at prices and on terms less favorable to Pledgee or the seller than
if sold at public sales, and therefore recognizes and confirms that such private
sales shall not be deemed to have been made in a commercially unreasonable
manner solely because they were made privately. Pledgor agrees that Pledgee has
no obligation to delay the sale of any such securities for the period of time
necessary to permit the issuer of such securities to register such securities
for public sale under the Securities Act of 1933, as amended.
(7) In the event that any stock dividend, reclassification,
readjustment or other change is made or declared in the capital structure of, or
Pledgor acquires or in any other manner receives additional shares of stock in,
any corporation described in the attached Schedule of Collateral, if any, or any
option included within the Collateral is exercised, or both, all new,
substituted and additional shares, or other securities, issued by reason of any
such change or exercise shall be delivered to and held by Pledgee under the
terms hereof in the same manner as the Collateral originally pledged hereunder.
No cash dividends may be paid to or retained by Pledgor unless expressly
permitted in writing by Pledgee.
(8) So long as no Event of Default has occurred and is continuing under
and as defined in the Loan Agreement, and, until Pledgee notifies Pledgor in
writing of the exercise of its rights hereunder, Pledgor shall retain the sole
right to vote the Collateral, if any, on all corporate questions for all
purposes not inconsistent with the terms hereof, as well as retain all other
rights relating to the Collateral not inconsistent herewith, including, without
limitation, subscription rights.
(9) Pledgee shall have no obligation to take any steps to preserve,
protect or defend the rights of Pledgor or Pledgee in the Collateral against
other parties. Pledgee shall have no obligation to sell or otherwise deal with
the Collateral at any time for any reason, whether or not upon request of
Pledgor, and whether or not the value of the Collateral, in the opinion of
Pledgee or Pledgor, is more or less than the aggregate amount of the Obligations
secured hereby, and any such refusal or inaction by Pledgee shall not be deemed
a breach of any duty which Pledgee may have under law to preserve the
Collateral. Unless expressly set forth herein, no duty, obligation or
responsibility of any kind is intended to be delegated to or assumed by Pledgee
at any time with respect to the Collateral.
(10) To the extent Pledgee is required by law to give Pledgor prior
notice of any public or private sale, or other disposition of the Collateral,
Pledgor agrees that five (5) days' prior written notice to Pledgor shall be a
commercially reasonable and sufficient notice of such sale or other intended
disposition. Pledgor further recognizes and agrees that if the Collateral, or a
portion thereof, threatens to decline speedily in value or is of a type
customarily sold on a recognized market, Pledgor shall not be entitled to any
prior notice of sale or other intended disposition.
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(11) Pledgor shall indemnify, defend and hold harmless Pledgee from and
against any and all claims, losses and liabilities resulting from any breach by
Pledgor of Pledgor's representations and covenants under this Pledge Agreement.
(12) Pledgor hereby waives notice of (a) acceptance of this Pledge
Agreement, and (b) the existence of any Event of Default under and as defined in
the Loan Agreement, the making of demand, or the taking of any action by Pledgee
under the Loan Agreement.
(13) Pledgor hereby consents and agrees that Pledgee may at any time or
from time to time in its sole discretion (a) extend or change the time of
payment and/or the manner, place or terms of payment of any and all Obligations
(as defined herein and in the Loan Agreement), (b) amend, supplement or replace
the Loan Agreement or any of the other Loan Documents (as defined in Loan
Agreement), (c) renew, extend, modify, increase or decrease loans and extensions
of credit under the Loan Agreement, (d) modify the terms and conditions under
which loans and extensions of credit may be made under the Loan Agreement, (e)
settle, compromise or grant releases for any Obligations (as defined herein and
in the Loan Agreement) and/or any person or persons liable for payment of any
Obligations (as defined herein and in the Loan Agreement), (f) exchange,
release, surrender, sell, subordinate or compromise any collateral of any party
now or hereafter securing any of the Obligations (as defined herein and in the
Loan Agreement) and (g) apply any and all payments received from any source by
Pledgee at any time against the Obligations in any order as Pledgee may
determine; all of the foregoing in such manner and upon such terms as Pledgee
may determine and without notice to or further consent from Pledgor and without
impairing or modifying the terms and conditions of this Pledge Agreement which
shall remain in full force and effect.
(14) This Pledge Agreement shall remain in full force and effect and
shall not be limited, impaired or otherwise affected in any way by reason of (a)
any delay in making demand on Pledgor for or delay in enforcing or failure to
enforce, performance or payment of the Obligations (as defined in the Loan
Agreement), or (b) any failure, neglect or omission on Pledgee's part to perfect
any lien upon, protect, exercise rights against, or realize on, any property of
Pledgor or any other party securing the Obligations (as defined herein and in
the Loan Agreement).
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(15) Pledgor covenants and agrees that Pledgor shall not, without the
prior written consent of Pledgee, sell, encumber or grant any lien, security
interest or option on or with respect to any of the Collateral.
(16) Any failure of or delay by Pledgee to exercise any right or remedy
hereunder shall not be construed as a waiver of the right to exercise the same
or any other right or remedy at any other time.
(17) This Pledge Agreement constitutes the entire agreement between the
parties hereto regarding the subject matter hereof and may be modified only by a
written instrument signed by the party or parties against whom any change is
sought to be enforced.
(18) This Pledge Agreement is made in and shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania, and
the provisions hereof shall be deemed severable in the event of the invalidity
of any provision. Pledgor and Pledgee each irrevocably waive any and all right
to a jury trial in any action, proceeding or controversy arising from or
relating to this Pledge Agreement.
(19) All communications which Pledgee may provide to Pledgor herein
shall be sent to Pledgor at the address set forth below in the manner provided
for sending notices under the Loan Agreement.
(20) This Pledge Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and assigns.
This Stock Pledge Agreement is executed this 26th day of March, 1999.
FIDELITY LEASING, INC.
Attest: By:
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Name: Name:
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Title: Title:
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Address:
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SCHEDULE OF COLLATERAL
The following Collateral is hereby pledged by Pledgor to Pledgee
pursuant to the Stock Pledge Agreement to which this Schedule is attached:
Company Certificate No. Amount of Shares
------- --------------- ----------------
JLA Credit Corporation 18 60,000
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