PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of January 6, 1997, made by
BATTERY ACQUISITION CORP., a New York corporation ("Pledgor") to IBJ XXXXXXXX
BANK & TRUST COMPANY, as Agent (as hereinafter defined) (the "Pledgee").
BACKGROUND TO THE AGREEMENT
This Pledge Agreement is executed and delivered under and
pursuant to the terms of that certain Revolving Credit, Term Loan and Security
Agreement dated as of January 6, 1997 (as amended, supplemented or modified
from time to time, the "Loan Agreement") by and among Pledgor, Xxxxxx
Electronics, Inc. ("TEI"), Advanced Fox Antenna, Inc. ("AFA"), Specific Energy
Corporation ("SEC"), Battery Network, Inc. ("BN"), W.S. Battery & Sales
Company, Inc. ("WSBS") and Batteries Batteries, Inc. ("BATS" and together with
Pledgor, TEI, AFA, SEC, BN and WSBS, each a "Borrower" and, collectively, the
"Borrowers"), IBJ Xxxxxxxx Bank & Trust Company ("IBJS"), each of the other
financial institutions named in or which hereafter become a party to the Loan
Agreement (IBJS and such other financial institutions, the "Lenders") and IBJS
as agent for the Lenders (IBJS in such capacity, the "Agent"), pursuant to
which Pledgee agreed, subject to the terms and conditions contained therein,
to provide certain financial accommodations to Borrowers.
In order to induce Pledgee to provide the financial
accommodations described in the Loan Agreement, Pledgor has agreed to pledge
and grant a security interest to Pledgee in the Pledged Collateral (as
hereinafter defined).
NOW, THEREFORE, in consideration of the premises and
for other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged, Pledgor hereby agrees with Pledgee as follows:
SECTION 1. Defined Terms
Unless otherwise defined herein, terms defined in the Loan
Agreement shall have such defined meanings when used herein.
SECTION 2. Pledge
Pledgor hereby pledges, assigns, hypothecates, transfers and
grants a security interest to Pledgee for the ratable benefit of the Lenders
in all of the following (the "Pledged Collateral"):
(a) the shares of stock set forth on Schedule A annexed
hereto and expressly made a part hereof (the "Pledged Stock"), the
certificates representing the Pledged Stock and all dividends, cash,
instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Stock;
(b) all additional shares of stock of any issuer of the
Pledged Stock (the "Issuer") from time to time acquired by the Pledgor in any
manner, including, without limitation, stock dividends or a distribution in
connection with any increase or reduction of capital, reclassification,
merger, consolidation, sale of assets, combination of shares, stock split,
spin-off or split-off (which shares shall be deemed to be part of the Pledged
Collateral), and the certificates representing such additional shares, and all
dividends, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such shares; and
(c) all options and rights, whether as an addition to, in
substitution of or in exchange for any shares of the Pledged Stock and all
dividends, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all such options and rights.
SECTION 3. Indebtedness Secured
This pledge is made to secure and the Pledged Collateral is
security for the payment of (a) all the Obligations and (b) any and all other
indebtedness, obligations and liabilities of Pledgor and/or Borrowers to
Pledgee whether now existing or hereafter arising, direct or indirect,
liquidated or unliquidated, absolute or contingent, due or not due and whether
under, pursuant to or evidenced by a note, agreement, guaranty, other
instrument or otherwise ((a) and (b) collectively, the "Indebtedness").
SECTION 4. Delivery of Pledged Collateral
All certificates representing or evidencing the Pledged
Stock shall be delivered to and held by or on behalf of Pledgee pursuant
hereto and shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to Pledgee.
Pledgor hereby authorizes the Issuer upon demand by Pledgee to deliver any
certificates, instruments or other distributions issued in connection with the
Pledged Collateral directly to Pledgee, in each case to be held by Pledgee,
subject to the terms hereof. Pledgee shall have the right, at any time in its
discretion and without notice to the Pledgor, to transfer to or to register in
the name of Pledgee or any of its nominees any or all of the Pledged Stock. In
addition, Pledgee shall have the right at any time to exchange certificates or
instruments representing or evidencing Pledged Stock for certificates or
instruments of smaller or larger denominations.
SECTION 5. Representations and Warranties
Pledgor represents and warrants to Pledgee that:
(a) Pledgor has the requisite power and authority to enter
into this Agreement, to pledge the Pledged Collateral for the purposes
described herein and to carry out the transactions contemplated by this
Agreement;
(b) The execution, delivery and performance by Pledgor of
this Agreement has been duly and properly authorized and does not and will not
result in any violation of any agreement, indenture or other instrument,
license, judgment, decree, order, law, statute, ordinance or other
governmental rule or regulation applicable to Pledgor;
(c) This Agreement constitutes a legal, valid and
binding obligation of Pledgor enforceable in accordance with its terms;
(d) Pledgor is the direct and beneficial owner of each
share of the Pledged Stock;
(e) All of the shares of the Pledged Stock have been
duly authorized, validly issued and are fully paid and nonassessable;
(f) Upon delivery of the Pledged Stock to Pledgee or an
agent for Pledgee, this Agreement creates and grants a valid first lien on and
perfected security interest in the Pledged Collateral and the proceeds
thereof, subject to no prior Lien, or to any agreement purporting to grant to
any third party a Lien upon the property or assets of Pledgor which would
include the Pledged Collateral;
(g) There are no restrictions on transfer of the Pledged
Stock contained in the Certificate of Incorporation or by-laws of the Issuer
or otherwise which have not otherwise been enforceably and legally waived by
the necessary parties;
(h) None of the Pledged Stock has been issued or transferred
in violation of the securities registration, securities disclosure or similar
laws of any jurisdiction to which such issuance or transfer may be subject;
(i) No consent, approval, authorization or other order of
any Person and no consent, authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required by the Pledgor either (i) for the pledge of the Pledged Collateral
pursuant to this Agreement or for the execution, delivery or performance of
this Agreement or (ii) for the exercise by the Pledgee of the voting or other
rights provided for in this Agreement or the remedies in respect of the
Pledged Collateral pursuant to this Agreement, except as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally;
(j) No notification of the pledge evidenced hereby to
any Person is required;
(k) As of the date hereof, there are no existing options,
warrants, calls or commitments of any such character whatsoever relating to
any Pledged Stock and no indebtedness or other security convertible into any
Pledged Stock; and
(l) The Pledged Stock constitutes one hundred percent (100%)
of the issued and outstanding shares of capital stock of the Issuers thereof
set forth on Schedule A annexed hereto.
The representations and warranties set forth in this Section
5 (other than those contained in Section (k)) shall survive the execution and
delivery of this Agreement.
SECTION 6. Covenants
Pledgor covenants that, until the Indebtedness shall be
satisfied in full and the Loan Agreement is irrevocably terminated:
(a) Pledgor will not sell, assign, transfer, convey, or
otherwise dispose of its rights in or to the Pledged Collateral or any
interest therein; nor will Pledgor create, incur or permit to exist any Lien
whatsoever with respect to any of the Pledged Collateral or the proceeds
thereof other than that created hereby;
(b) Pledgor will, at its expense, defend Pledgee's
right, title and security interest in and to the Pledged Collateral against
the claims of any Person;
(c) Pledgor shall at any time, and from time to time, upon
the written request of Pledgee, execute and deliver such further documents and
do such further acts and things as Pledgee may reasonably request in order to
effect the purposes of this Agreement including, but without limitation,
delivering to Pledgee upon the occurrence of an Event of Default irrevocable
proxies in respect of the Pledged Collateral in form satisfactory to Pledgee.
Until receipt of irrevocable proxies by Pledgee, this Agreement shall
constitute Pledgor's proxy to Pledgee or its nominee to vote all shares of
Pledged Collateral then registered in Pledgor's name;
(d) Pledgor will not consent to or approve the issuance of
(i) any additional shares of any class of capital stock of the Issuer; (ii)
any securities convertible either voluntarily by the holder thereof or
automatically upon the occurrence or nonoccurrence of any event or condition
into, or any securities exchangeable for, any such shares; or (iii) any
warrants, options, contracts or other commitments entitling any person to
purchase or otherwise acquire any such shares;
(e) Pledgor will not create, incur, assume or suffer to
exist any Lien upon any property or assets, whether now owned or hereafter
acquired, except for liens incidental to the conduct of Pledgor's business or
the ownership of its assets or properties not incurred in connection with the
borrowing of money or the acquisition of any asset, and which in the aggregate
do not materially detract from Pledgor's operations, property or financial
condition; and
(f) Pledgor will not convey, sell, lease, transfer or
otherwise dispose of in one or a series of related transactions, all or any
substantial part of its property, business or assets.
SECTION 7. Voting Rights and Dividends
In addition to Pledgee's rights and remedies set forth in
Section 9 hereof, in case an Event of Default shall have occurred and has been
declared by Pledgee, Pledgee shall (i) vote the Pledged Collateral (ii) be
entitled to give consents, waivers and ratifications in
respect of the Pledged Collateral (Pledgor hereby irrevocably constituting and
appointing Pledgee, with full power of substitution, the proxy and
attorney-in-fact of Pledgor for such purposes) and (iii) be entitled to
collect and receive for its own use cash dividends paid on the Pledged
Collateral. Pledgor shall not be permitted to exercise or refrain from
exercising any voting rights or other powers if, in the reasonable judgment of
Pledgee, such action would have a material adverse effect on the value of the
Pledged Collateral or any part thereof; and, provided, further, that Pledgor
shall give at least five (5) days' written notice of the manner in which
Pledgor intends to exercise, or the reasons for refraining from exercising,
any voting rights or other powers other than with respect to any election of
directors and voting with respect to any incidental matters. All dividends and
all other distributions in respect of any of the Pledged Collateral, whenever
paid or made, shall be delivered to Pledgee to hold as Pledged Collateral and
shall, if received by the Pledgor, be received in trust for the benefit of
Pledgee, be segregated from the other property or funds of the Pledgor, and be
forthwith delivered to Pledgee as Pledged Collateral in the same form as so
received (with any necessary indorsement).
SECTION 8. Event of Default
An Event of Default shall be deemed to have occurred and may
be declared by Pledgee upon the happening of any of the following events:
(a) An Event of Default shall occur under the Loan
Agreement and/or Pledgor or any Borrower shall default in the payment of any
Obligation;
(b) Pledgor shall default in the performance of any of
its obligations under any agreement between Pledgor and Pledgee, including,
without limitation, this Agreement;
(c) Any representation, warranty, statement or covenant made
or furnished to Pledgee by or on behalf of Pledgor in this Agreement proves to
have been false in any material respect when made or furnished or is breached,
violated or not complied with; or
(d) Pledgor and/or any Borrower (i) apply for, consent to,
or suffer to exist the appointment of, or the taking of possession by, a
receiver, custodian, trustee, liquidator or other fiduciary of itself or of
all or a substantial part of its property, (ii) make a general assignment for
the benefit of creditors, (iii) commence a voluntary case under any state or
federal bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a
bankrupt or insolvent, (v) file a petition seeking to take advantage of any
other law providing for the relief of debtors, (vi) acquiesce to, or fail to
have dismissed, within thirty (30) days, any petition filed against it in any
involuntary case under such bankruptcy laws, or (vii) take any action for the
purpose of effecting any of the foregoing.
SECTION 9. Remedies
In case an Event of Default shall have occurred and be
declared by Pledgee, Pledgee may:
(a) Transfer any or all of the Pledged Collateral into
its name, or into the name of its nominee or nominees;
(b) Exercise all corporate rights with respect to the
Pledged Collateral including, without limitation, all rights of conversion,
exchange, subscription or any other rights, privileges or options pertaining
to any shares of the Pledged Collateral as if it were the absolute owner
thereof, including, but without limitation, the right to exchange, at its
discretion, any or all of the Pledged Collateral upon the merger,
consolidation, reorganization, recapitalization or other readjustment of the
Issuer thereof, or upon the exercise by the Issuer of any right, privilege or
option pertaining to any of the Pledged Collateral, and, in connection
therewith, to deposit and deliver any and all of the Pledged Collateral with
any committee, depository, transfer agent, registrar or other designated agent
upon such terms and conditions as it may determine, all without liability
except to account for property actually received by it;
(c) Subject to any requirement of applicable law, sell,
assign and deliver the whole or, from time to time, any part of the Pledged
Collateral at the time held by Pledgee, at any private sale or at public
auction, with or without demand, advertisement or notice of the time or place
of sale or adjournment thereof or otherwise (all of which are hereby waived,
except such notice as is required by applicable law and cannot be waived), for
cash or credit or for other property for immediate or future delivery, and for
such price or prices and on such terms as Pledgee in its sole discretion may
determine, or as may be required by applicable law.
Pledgor hereby waives and releases any and all right or
equity of redemption, whether before or after sale hereunder. At any such
sale, unless prohibited by applicable law, Pledgee may bid for and purchase
the whole or any part of the Pledged Collateral so sold free from any such
right or equity of redemption. All moneys received by Pledgee, hereunder
whether upon sale of the Pledged Collateral or any part thereof or otherwise
shall be held by Pledgee and applied by it as provided in Section 12 hereof.
No failure or delay on the part of Pledgee in exercising any rights hereunder
shall operate as a waiver of any such rights nor shall any single or partial
exercise of any such rights preclude any other or future exercise thereof or
the exercise of any other rights hereunder. Pledgee shall have no duty as to
the collection or protection of the Pledged Collateral or any income thereon
nor any duty as to preservation of any rights pertaining thereto, except to
apply the funds in accordance with the requirements of Section 12 hereof.
Pledgee may exercise its rights with respect to property held hereunder
without resort to other security for or sources of reimbursement for the
Indebtedness. In addition to the foregoing, Pledgee shall have all of the
rights, remedies and privileges of a secured party under the Uniform
Commercial Code of New York regardless of the jurisdiction in which
enforcement hereof is sought.
SECTION 10. Registration
If Pledgee shall exercise its right to sell all or any part
of the Pledged Collateral, and if, in the opinion of counsel for Pledgee, it
is necessary to have the Pledged Collateral being sold registered under the
provisions of the Securities Act of 1933, as amended (the "Securities Act"),
Pledgor will use its best efforts to cause the Issuer to execute and deliver,
and to cause the directors and officers of the Issuer to execute and deliver,
all at Pledgor's expense, all such instruments and documents and to do or
cause to be done all such other acts and things as may be necessary to
register the Pledged Collateral being sold under the provisions of the
Securities Act. Pledgor shall cause any such registration statement to
become effective and to remain effective for a period of one year from the
date of the first public offering of the Pledged Collateral being sold and to
make all amendments thereto and to related documents which, in the opinion of
Pledgee or its counsel, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Pledgor shall also
cause the Issuer to comply with the provisions of the "Blue Sky" law of any
jurisdiction which Pledgee shall designate in connection with any sale
hereunder; and to cause the Issuer to make available to its security holders,
as soon as practicable, an earnings statement (which need not be audited)
covering a period of at least twelve months but not more than eighteen months,
beginning with the first month after the effective date of any such
registration statement, which earnings statement will satisfy the provisions
of Section 11(a) of the Securities Act. Pledgor acknowledges that a breach of
any of the covenants contained in this Section may cause irreparable injury to
Pledgee that Pledgee will have no adequate remedy at law with respect to such
breach and, as a consequence, such covenants of Pledgor shall be specifically
enforceable against Pledgor.
SECTION 11. Private Sale
Notwithstanding anything contained in Section 10, Pledgor
recognizes that Pledgee may be unable to effect (or to do so only after delay
which would adversely affect the value that might be realized from the Pledged
Collateral) a public sale of all or part of the Pledged Collateral by reason
of certain prohibitions contained in the Securities Act, 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 Pledged
Collateral 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 the seller than if sold at public
sales and that such private sales shall be deemed to have been made in a
commercially reasonable manner. Pledgor agrees that Pledgee has no obligation
to delay sale of any Pledged Collateral for the period of time necessary to
permit the Issuer to register the Pledged Collateral for public sale under the
Securities Act.
SECTION 12. Proceeds of Sale
The proceeds of any collection, recovery, receipt,
appropriation, realization or sale of the Pledged Collateral shall be applied
by Pledgee as follows:
(a) First, to the payment of all costs, expenses and charges
of Pledgee, as such, or the reimbursement of Pledgee for the prior payment of
such costs, expenses and charges incurred in connection with the care and
safekeeping of any of the Pledged Collateral (including, without limitation,
the expenses of any sale or other proceeding, the expenses of any taking,
reasonable attorneys' fees and expenses, court costs, any other expenses
incurred or expenditures or advances made by Pledgee in the protection,
enforcement or exercise of its rights, powers or remedies hereunder) with
interest on any such reimbursement at the rate prescribed in the Loan
Agreement as the Default Rate from the date of payment.
(b) Second, to the payment of the Indebtedness, in whole or
in part, in such order as Pledgee may elect, whether such Indebtedness is then
due or not due.
(c) Third, to such Persons as required by applicable law
including, without limitation, Section 9-504(1)(c) of the Uniform Commercial
Code.
(d) Fourth, to the extent of any surplus thereafter
remaining, to Pledgor or as a court of competent jurisdiction may direct.
In the event that the proceeds of any collection, recovery,
receipt, appropriation, realization or sale are insufficient to satisfy the
Indebtedness, Pledgor shall be liable for the deficiency together with
interest thereon at the rate prescribed in the Loan Agreement as the Default
Rate plus the reasonable fees of any attorneys employed by Pledgee to collect
such deficiency.
Pledgee, in its sole and absolute discretion, with or
without notice to Pledgor, may deposit any proceeds of any collection,
recovery, receipt, appropriation or sale of the Pledged Collateral in a
non-interest bearing cash collateral deposit account to be maintained as
security for the Indebtedness.
SECTION 13. Information
Pledgor will promptly give or cause to be given written
notice to Pledgee of any notices or other documents received by it with
respect to Pledged Collateral registered in the name of Pledgor.
SECTION 14. Termination
This Agreement shall terminate and Pledgor shall be entitled
to the return, at Pledgor's expense, of such of the Pledged Collateral as has
not theretofore been sold or otherwise applied pursuant to this Agreement,
together with any moneys at any time held by Pledgee, upon payment in full of
the Indebtedness and irrevocable termination of the Loan Agreement.
SECTION 15. Concerning Pledgee
The recitals of fact herein shall be taken as statements of
Pledgor for which Pledgee assumes no responsibility. Pledgee makes no
representation to anyone as to the value of the Pledged Collateral or any part
thereof or as to the validity or adequacy of the security afforded or intended
to be afforded thereby or as to the validity of this Agreement. Pledgee shall
be protected in relying upon any notice, consent, request or other paper or
document believed by it to be genuine and correct and to have been signed by a
proper person. The permissive rights of Pledgee hereunder shall not be
construed as duties of Pledgee. Pledgee shall be under no obligation to take
any action toward the enforcement of this Agreement or rights or remedies in
respect of any of the Pledged Collateral except in the event Pledgee chooses
to exercise its rights and remedies hereunder it shall comply with its
obligations under this Agreement. Pledgee shall not be personally liable for
any action taken or omitted by it in good faith and reasonably believed by it
to be within the power or discretion conferred upon it by this Agreement.
SECTION 16. Notices
Any notice or request hereunder may be given to Pledgor or
to Pledgee at their respective addresses set forth below or at such other
address as may hereafter be specified in a notice designated as a notice of
change of address under this Section. Any notice or request hereunder shall be
given by (a) hand delivery, (b) registered or certified mail, return receipt
requested, (c) a recognized overnight delivery service, or (d) telefax to the
number set out below (or such other number as may hereafter be specified in a
notice designated as a notice of change of address) with telephone
communication to a duly authorized officer of the recipient confirming its
receipt as subsequently confirmed by registered or certified mail. Any notice
or other communication required or permitted pursuant to this Agreement shall
be deemed given (1) when personally delivered to any officer of the party to
whom it is addressed, (2) on the earlier of actual receipt thereof or three
(3) days following posting thereof by certified or registered mail, postage
prepaid, or (3) upon actual receipt thereof when sent by a recognized
overnight delivery service or (4) upon actual receipt thereof when sent by
telecopier to the number set forth below with telephone communication
confirming receipt and subsequently confirmed by registered, certified or
overnight mail to the address set forth below, in each case addressed to each
party at its address set forth below or at such other address as has been
furnished in writing by a party to the other by like notice:
(A) If to Pledgee, at: IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Xxxx & Hessen LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(B) If to Pledgor, at: Batteries Acquisition Corp.
c/o Founders Equity, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Brock, Fensterstock, Xxxxxxxxxxx,
XxXxxxxxx & Xxxx, LLC
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SECTION 17. Governing Law.
This Agreement and all rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the State of New York
applied to contracts to be performed wholly within the State of New York.
SECTION 18. Waivers.
PLEDGOR AND PLEDGEE EACH HEREBY EXPRESSLY WAIVE ANY AND ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS
AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OTHER AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE; AND PLEDGOR AND PLEDGEE EACH HEREBY AGREE AND
CONSENT THAT ANY SUCH ACTIONS OR PROCEEDINGS SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT EITHER PARTY MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
OTHER PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
SECTION 19. Litigation.
PLEDGOR EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF THE
SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK, AND OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR ALL PURPOSES
IN CONNECTION WITH THIS AGREEMENT. ANY JUDICIAL PROCEEDING BY PLEDGOR AGAINST
PLEDGEE INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY
ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT SHALL BE BROUGHT
ONLY IN THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. PLEDGOR
FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS
(INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO
EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN
CONNECTION WITH ANY PROCEEDINGS
HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF THE STATE OF NEW YORK OR THE
SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, OR BY PERSONAL SERVICE PROVIDED A REASONABLE TIME FOR APPEARANCE IS
PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE PERMISSIBLE UNDER THE RULES OF
SAID COURTS. PLEDGOR WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY
ACTION INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
SECTION 20. No Waiver; Cumulative Remedies.
No failure on the part of Pledgee to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof nor shall any single or partial exercise of any such right, power or
remedy by Pledgee preclude any other or further exercise thereof or the
exercise of any right, power or remedy. All remedies hereunder are cumulative
and are not exclusive of any other remedies provided by law.
SECTION 21. Severability.
In case any security interest or other right of Pledgee shall be
held to be invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not affect any other security interest or other right,
privilege or power granted under this Agreement.
SECTION 22. Counterparts.
This Agreement may be executed in one or more counterparts, each
of which may be executed by one or more of the parties hereto, but all of
which when taken together shall constitute but one agreement binding on all
the parties hereto.
SECTION 23. Miscellaneous
Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing,
signed by Pledgee and Pledgor. The provisions of this Agreement shall be
binding upon the successors and assigns of Pledgor. The term "Pledgee", as
used herein, shall include any successor or assign of Pledgee at the time
entitled to the pledged interest in the Pledged Collateral. The headings in
this Agreement are for purposes of reference only and shall not limit or
define the meaning hereof.
SECTION 24. Captions
The captions at various places in this Agreement are intended for
convenience only and do not constitute and shall not be interpreted as part of
this Agreement.
SECTION 25. Recapture
Anything in this Agreement to the contrary notwithstanding, if
Pledgee receives any payment or payments on account of the Indebtedness, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver, or any other party under the United States Bankruptcy Code,
as amended, or any other federal or state bankruptcy, reorganization,
moratorium or insolvency law relating to or affecting the enforcement of
creditors' rights generally, common law or equitable doctrine, then to the
extent of any sum not finally retained by Pledgee, Pledgor's obligations to
Pledgee shall be reinstated and this Agreement shall remain in full force and
effect (or be reinstated) until payment shall have been made to Pledgee, which
payment shall be due on demand.
IN WITNESS WHEREOF, Pledgor has caused this Agreement to be duly
executed as of the 6th day of January, 1997.
BATTERY ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxx
___________________________
Its: Vice President, CFO COO
__________________________
IBJ XXXXXXXX BANK & TRUST
COMPANY, AS AGENT
By: Xxxxx Xxxx
___________________________
Its: Vice President
__________________________
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the 6th day of January, 1997, before me personally came
Xxxxxx Xxxxx, to me known, who being by me duly sworn, did depose and say that
he is a VP-CFO-COO of Batteries Batteries, Inc., the corporation described in
and which executed the above instrument; and that he signed his name thereto by
like order of the board of directors of said corporation.
/s/ Xxxx X. Xxxxxxx
--------------------------------
Notary Public
Xxxx X. Xxxxxxx
Notary Public, State of New York
No. 02VA5049635
Qualified in Nassau County
Commission Expires 9/18/97
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the 6th day of January, 1997, before me personally came
Xxxxx Xxxx, to me known, who being by me duly sworn, did depose and say that he
is a VP of IBJ Xxxxxxxx Bank & Trust Company, the corporation described in and
which executed the above instrument; and that he signed his name thereto by
like order of the board of directors of said corporation.
/s/ Xxxx X. Xxxxxxx
--------------------------------
Notary Public
Xxxx X. Xxxxxxx
Notary Public, State of New York
No. 02VA5049635
Qualified in Nassau County
Commission Expires 9/18/97
SCHEDULE A
TO PLEDGE AGREEMENT DATED AS OF JANUARY 6, 1997 BETWEEN BATTERY
ACQUISITION CORP., AND IBJ XXXXXXXX BANK & TRUST COMPANY, AS AGENT.
PLEDGED STOCK
Class of Stock Certificate Par Number of
Issuer Stock Number Value Shares
Specific Energy Common 13 $1.00 150
Corporation
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of January 6, 1997, made by
BATTERIES BATTERIES, INC., a Delaware corporation ("Pledgor") to IBJ XXXXXXXX
BANK & TRUST COMPANY, as Agent (as hereinafter defined) (the "Pledgee").
BACKGROUND TO THE AGREEMENT
This Pledge Agreement is executed and delivered under and
pursuant to the terms of that certain Revolving Credit, Term Loan and Security
Agreement dated as of January 6, 1997 (as amended, supplemented or modified
from time to time, the "Loan Agreement") by and among Pledgor, Xxxxxx
Electronics, Inc. ("TEI"), Advanced Fox Antenna, Inc. ("AFA"), Specific Energy
Corporation ("SEC"), Battery Network, Inc. ("BN"), W.S. Battery & Sales
Company, Inc. ("WSBS") and Battery Acquisition Corp. ("BAC" and together with
Pledgor, TEI, AFA, SEC, BN and WSBS, each a "Borrower" and, collectively, the
"Borrowers"), IBJ Xxxxxxxx Bank & Trust Company ("IBJS"), each of the other
financial institutions named in or which hereafter become a party to the Loan
Agreement (IBJS and such other financial institutions, the "Lenders") and IBJS
as agent for the Lenders (IBJS in such capacity, the "Agent"), pursuant to
which Pledgee agreed, subject to the terms and conditions contained therein,
to provide certain financial accommodations to Borrowers.
In order to induce Pledgee to provide the financial
accommodations described in the Loan Agreement, Pledgor has agreed to pledge
and grant a security interest to Pledgee in the Pledged Collateral (as
hereinafter defined).
NOW, THEREFORE, in consideration of the premises and
for other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged, Pledgor hereby agrees with Pledgee as follows:
SECTION 1. Defined Terms
Unless otherwise defined herein, terms defined in the Loan
Agreement shall have such defined meanings when used herein.
SECTION 2. Pledge
Pledgor hereby pledges, assigns, hypothecates, transfers and
grants a security interest to Pledgee for the ratable benefit of the Lenders
in all of the following (the "Pledged Collateral"):
(a) the shares of stock set forth on Schedule A annexed
hereto and expressly made a part hereof (the "Pledged Stock"), the
certificates representing the Pledged Stock and all dividends, cash,
instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Stock;
(b) all additional shares of stock of any issuer of the
Pledged Stock (the "Issuer") from time to time acquired by the Pledgor in any
manner, including, without limitation, stock dividends or a distribution in
connection with any increase or reduction of capital, reclassification,
merger, consolidation, sale of assets, combination of shares, stock split,
spin-off or split-off (which shares shall be deemed to be part of the Pledged
Collateral), and the certificates representing such additional shares, and all
dividends, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such shares; and
(c) all options and rights, whether as an addition to, in
substitution of or in exchange for any shares of the Pledged Stock and all
dividends, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all such options and rights.
SECTION 3. Indebtedness Secured
This pledge is made to secure and the Pledged Collateral is
security for the payment of (a) all the Obligations and (b) any and all other
indebtedness, obligations and liabilities of Pledgor and/or Borrowers to
Pledgee whether now existing or hereafter arising, direct or indirect,
liquidated or unliquidated, absolute or contingent, due or not due and whether
under, pursuant to or evidenced by a note, agreement, guaranty, other
instrument or otherwise ((a) and (b) collectively, the "Indebtedness").
SECTION 4. Delivery of Pledged Collateral
All certificates representing or evidencing the Pledged
Stock shall be delivered to and held by or on behalf of Pledgee pursuant
hereto and shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to Pledgee.
Pledgor hereby authorizes the Issuer upon demand by Pledgee to deliver any
certificates, instruments or other distributions issued in connection with the
Pledged Collateral directly to Pledgee, in each case to be held by Pledgee,
subject to the terms hereof. Pledgee shall have the right, at any time in its
discretion and without notice to the Pledgor, to transfer to or to register in
the name of Pledgee or any of its nominees any or all of the Pledged Stock. In
addition, Pledgee shall have the right at any time to exchange certificates or
instruments representing or evidencing Pledged Stock for certificates or
instruments of smaller or larger denominations.
SECTION 5. Representations and Warranties
Pledgor represents and warrants to Pledgee that:
(a) Pledgor has the requisite power and authority to enter
into this Agreement, to pledge the Pledged Collateral for the purposes
described herein and to carry out the transactions contemplated by this
Agreement;
(b) The execution, delivery and performance by Pledgor of
this Agreement has been duly and properly authorized and does not and will not
result in any violation of any agreement, indenture or other instrument,
license, judgment, decree, order, law, statute, ordinance or other
governmental rule or regulation applicable to Pledgor;
(c) This Agreement constitutes a legal, valid and
binding obligation of Pledgor enforceable in accordance with its terms;
(d) Pledgor is the direct and beneficial owner of each
share of the Pledged Stock;
(e) All of the shares of the Pledged Stock have been
duly authorized, validly issued and are fully paid and nonassessable;
(f) Upon delivery of the Pledged Stock to Pledgee or an
agent for Pledgee, this Agreement creates and grants a valid first lien on and
perfected security interest in the Pledged Collateral and the proceeds
thereof, subject to no prior Lien, or to any agreement purporting to grant to
any third party a Lien upon the property or assets of Pledgor which would
include the Pledged Collateral;
(g) There are no restrictions on transfer of the Pledged
Stock contained in the Certificate of Incorporation or by-laws of the Issuer
or otherwise which have not otherwise been enforceably and legally waived by
the necessary parties;
(h) None of the Pledged Stock has been issued or transferred
in violation of the securities registration, securities disclosure or similar
laws of any jurisdiction to which such issuance or transfer may be subject;
(i) No consent, approval, authorization or other order of
any Person and no consent, authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required by the Pledgor either (i) for the pledge of the Pledged Collateral
pursuant to this Agreement or for the execution, delivery or performance of
this Agreement or (ii) for the exercise by the Pledgee of the voting or other
rights provided for in this Agreement or the remedies in respect of the
Pledged Collateral pursuant to this Agreement, except as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally;
(j) No notification of the pledge evidenced hereby to
any Person is required;
(k) As of the date hereof, there are no existing options,
warrants, calls or commitments of any such character whatsoever relating to
any Pledged Stock and no indebtedness or other security convertible into any
Pledged Stock; and
(l) The Pledged Stock constitutes one hundred percent (100%)
of the issued and outstanding shares of capital stock of the Issuers thereof
set forth on Schedule A annexed hereto.
The representations and warranties set forth in this Section
5 (other than those contained in Section (k)) shall survive the execution and
delivery of this Agreement.
SECTION 6. Covenants
Pledgor covenants that, until the Indebtedness shall be
satisfied in full and the Loan Agreement is irrevocably terminated:
(a) Pledgor will not sell, assign, transfer, convey, or
otherwise dispose of its rights in or to the Pledged Collateral or any
interest therein; nor will Pledgor create, incur or permit to exist any Lien
whatsoever with respect to any of the Pledged Collateral or the proceeds
thereof other than that created hereby;
(b) Pledgor will, at its expense, defend Pledgee's
right, title and security interest in and to the Pledged Collateral against
the claims of any Person;
(c) Pledgor shall at any time, and from time to time, upon
the written request of Pledgee, execute and deliver such further documents and
do such further acts and things as Pledgee may reasonably request in order to
effect the purposes of this Agreement including, but without limitation,
delivering to Pledgee upon the occurrence of an Event of Default irrevocable
proxies in respect of the Pledged Collateral in form satisfactory to Pledgee.
Until receipt of irrevocable proxies by Pledgee, this Agreement shall
constitute Pledgor's proxy to Pledgee or its nominee to vote all shares of
Pledged Collateral then registered in Pledgor's name;
(d) Pledgor will not consent to or approve the issuance of
(i) any additional shares of any class of capital stock of the Issuer; (ii)
any securities convertible either voluntarily by the holder thereof or
automatically upon the occurrence or nonoccurrence of any event or condition
into, or any securities exchangeable for, any such shares; or (iii) any
warrants, options, contracts or other commitments entitling any person to
purchase or otherwise acquire any such shares;
(e) Pledgor will not create, incur, assume or suffer to
exist any Lien upon any property or assets, whether now owned or hereafter
acquired, except for liens incidental to the conduct of Pledgor's business or
the ownership of its assets or properties not incurred in connection with the
borrowing of money or the acquisition of any asset, and which in the aggregate
do not materially detract from Pledgor's operations, property or financial
condition; and
(f) Pledgor will not convey, sell, lease, transfer or
otherwise dispose of in one or a series of related transactions, all or any
substantial part of its property, business or assets.
SECTION 7. Voting Rights and Dividends
In addition to Pledgee's rights and remedies set forth in
Section 9 hereof, in case an Event of Default shall have occurred and has been
declared by Pledgee, Pledgee shall (i) vote the Pledged Collateral (ii) be
entitled to give consents, waivers and ratifications in
respect of the Pledged Collateral (Pledgor hereby irrevocably constituting and
appointing Pledgee, with full power of substitution, the proxy and
attorney-in-fact of Pledgor for such purposes) and (iii) be entitled to
collect and receive for its own use cash dividends paid on the Pledged
Collateral. Pledgor shall not be permitted to exercise or refrain from
exercising any voting rights or other powers if, in the reasonable judgment of
Pledgee, such action would have a material adverse effect on the value of the
Pledged Collateral or any part thereof; and, provided, further, that Pledgor
shall give at least five (5) days' written notice of the manner in which
Pledgor intends to exercise, or the reasons for refraining from exercising,
any voting rights or other powers other than with respect to any election of
directors and voting with respect to any incidental matters. All dividends and
all other distributions in respect of any of the Pledged Collateral, whenever
paid or made, shall be delivered to Pledgee to hold as Pledged Collateral and
shall, if received by the Pledgor, be received in trust for the benefit of
Pledgee, be segregated from the other property or funds of the Pledgor, and be
forthwith delivered to Pledgee as Pledged Collateral in the same form as so
received (with any necessary indorsement).
SECTION 8. Event of Default
An Event of Default shall be deemed to have occurred and may
be declared by Pledgee upon the happening of any of the following events:
(a) An Event of Default shall occur under the Loan
Agreement and/or Pledgor or any Borrower shall default in the payment of any
Obligation;
(b) Pledgor shall default in the performance of any of
its obligations under any agreement between Pledgor and Pledgee, including,
without limitation, this Agreement;
(c) Any representation, warranty, statement or covenant made
or furnished to Pledgee by or on behalf of Pledgor in this Agreement proves to
have been false in any material respect when made or furnished or is breached,
violated or not complied with; or
(d) Pledgor and/or any Borrower (i) apply for, consent to,
or suffer to exist the appointment of, or the taking of possession by, a
receiver, custodian, trustee, liquidator or other fiduciary of itself or of
all or a substantial part of its property, (ii) make a general assignment for
the benefit of creditors, (iii) commence a voluntary case under any state or
federal bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a
bankrupt or insolvent, (v) file a petition seeking to take advantage of any
other law providing for the relief of debtors, (vi) acquiesce to, or fail to
have dismissed, within thirty (30) days, any petition filed against it in any
involuntary case under such bankruptcy laws, or (vii) take any action for the
purpose of effecting any of the foregoing.
SECTION 9. Remedies
In case an Event of Default shall have occurred and be
declared by Pledgee, Pledgee may:
(a) Transfer any or all of the Pledged Collateral into
its name, or into the name of its nominee or nominees;
(b) Exercise all corporate rights with respect to the
Pledged Collateral including, without limitation, all rights of conversion,
exchange, subscription or any other rights, privileges or options pertaining
to any shares of the Pledged Collateral as if it were the absolute owner
thereof, including, but without limitation, the right to exchange, at its
discretion, any or all of the Pledged Collateral upon the merger,
consolidation, reorganization, recapitalization or other readjustment of the
Issuer thereof, or upon the exercise by the Issuer of any right, privilege or
option pertaining to any of the Pledged Collateral, and, in connection
therewith, to deposit and deliver any and all of the Pledged Collateral with
any committee, depository, transfer agent, registrar or other designated agent
upon such terms and conditions as it may determine, all without liability
except to account for property actually received by it;
(c) Subject to any requirement of applicable law, sell,
assign and deliver the whole or, from time to time, any part of the Pledged
Collateral at the time held by Pledgee, at any private sale or at public
auction, with or without demand, advertisement or notice of the time or place
of sale or adjournment thereof or otherwise (all of which are hereby waived,
except such notice as is required by applicable law and cannot be waived), for
cash or credit or for other property for immediate or future delivery, and for
such price or prices and on such terms as Pledgee in its sole discretion may
determine, or as may be required by applicable law.
Pledgor hereby waives and releases any and all right or
equity of redemption, whether before or after sale hereunder. At any such
sale, unless prohibited by applicable law, Pledgee may bid for and purchase
the whole or any part of the Pledged Collateral so sold free from any such
right or equity of redemption. All moneys received by Pledgee, hereunder
whether upon sale of the Pledged Collateral or any part thereof or otherwise
shall be held by Pledgee and applied by it as provided in Section 12 hereof.
No failure or delay on the part of Pledgee in exercising any rights hereunder
shall operate as a waiver of any such rights nor shall any single or partial
exercise of any such rights preclude any other or future exercise thereof or
the exercise of any other rights hereunder. Pledgee shall have no duty as to
the collection or protection of the Pledged Collateral or any income thereon
nor any duty as to preservation of any rights pertaining thereto, except to
apply the funds in accordance with the requirements of Section 12 hereof.
Pledgee may exercise its rights with respect to property held hereunder
without resort to other security for or sources of reimbursement for the
Indebtedness. In addition to the foregoing, Pledgee shall have all of the
rights, remedies and privileges of a secured party under the Uniform
Commercial Code of New York regardless of the jurisdiction in which
enforcement hereof is sought.
SECTION 10. Registration
If Pledgee shall exercise its right to sell all or any part
of the Pledged Collateral, and if, in the opinion of counsel for Pledgee, it
is necessary to have the Pledged Collateral being sold registered under the
provisions of the Securities Act of 1933, as amended (the "Securities Act"),
Pledgor will use its best efforts to cause the Issuer to execute and deliver,
and to cause the directors and officers of the Issuer to execute and deliver,
all at Pledgor's expense, all such instruments and documents and to do or
cause to be done all such other acts and things as may be necessary to
register the Pledged Collateral being sold under the provisions of the
Securities Act. Pledgor shall cause any such registration statement to
become effective and to remain effective for a period of one year from the
date of the first public offering of the Pledged Collateral being sold and to
make all amendments thereto and to related documents which, in the opinion of
Pledgee or its counsel, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Pledgor shall also
cause the Issuer to comply with the provisions of the "Blue Sky" law of any
jurisdiction which Pledgee shall designate in connection with any sale
hereunder; and to cause the Issuer to make available to its security holders,
as soon as practicable, an earnings statement (which need not be audited)
covering a period of at least twelve months but not more than eighteen months,
beginning with the first month after the effective date of any such
registration statement, which earnings statement will satisfy the provisions
of Section 11(a) of the Securities Act. Pledgor acknowledges that a breach of
any of the covenants contained in this Section may cause irreparable injury to
Pledgee that Pledgee will have no adequate remedy at law with respect to such
breach and, as a consequence, such covenants of Pledgor shall be specifically
enforceable against Pledgor.
SECTION 11. Private Sale
Notwithstanding anything contained in Section 10, Pledgor
recognizes that Pledgee may be unable to effect (or to do so only after delay
which would adversely affect the value that might be realized from the Pledged
Collateral) a public sale of all or part of the Pledged Collateral by reason
of certain prohibitions contained in the Securities Act, 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 Pledged
Collateral 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 the seller than if sold at public
sales and that such private sales shall be deemed to have been made in a
commercially reasonable manner. Pledgor agrees that Pledgee has no obligation
to delay sale of any Pledged Collateral for the period of time necessary to
permit the Issuer to register the Pledged Collateral for public sale under the
Securities Act.
SECTION 12. Proceeds of Sale
The proceeds of any collection, recovery, receipt,
appropriation, realization or sale of the Pledged Collateral shall be applied
by Pledgee as follows:
(a) First, to the payment of all costs, expenses and charges
of Pledgee, as such, or the reimbursement of Pledgee for the prior payment of
such costs, expenses and charges incurred in connection with the care and
safekeeping of any of the Pledged Collateral (including, without limitation,
the expenses of any sale or other proceeding, the expenses of any taking,
reasonable attorneys' fees and expenses, court costs, any other expenses
incurred or expenditures or advances made by Pledgee in the protection,
enforcement or exercise of its rights, powers or remedies hereunder) with
interest on any such reimbursement at the rate prescribed in the Loan
Agreement as the Default Rate from the date of payment.
(b) Second, to the payment of the Indebtedness, in whole or
in part, in such order as Pledgee may elect, whether such Indebtedness is then
due or not due.
(c) Third, to such Persons as required by applicable law
including, without limitation, Section 9-504(1)(c) of the Uniform Commercial
Code.
(d) Fourth, to the extent of any surplus thereafter
remaining, to Pledgor or as a court of competent jurisdiction may direct.
In the event that the proceeds of any collection, recovery,
receipt, appropriation, realization or sale are insufficient to satisfy the
Indebtedness, Pledgor shall be liable for the deficiency together with
interest thereon at the rate prescribed in the Loan Agreement as the Default
Rate plus the reasonable fees of any attorneys employed by Pledgee to collect
such deficiency.
Pledgee, in its sole and absolute discretion, with or
without notice to Pledgor, may deposit any proceeds of any collection,
recovery, receipt, appropriation or sale of the Pledged Collateral in a
non-interest bearing cash collateral deposit account to be maintained as
security for the Indebtedness.
SECTION 13. Information
Pledgor will promptly give or cause to be given written
notice to Pledgee of any notices or other documents received by it with
respect to Pledged Collateral registered in the name of Pledgor.
SECTION 14. Termination
This Agreement shall terminate and Pledgor shall be entitled
to the return, at Pledgor's expense, of such of the Pledged Collateral as has
not theretofore been sold or otherwise applied pursuant to this Agreement,
together with any moneys at any time held by Pledgee, upon payment in full of
the Indebtedness and irrevocable termination of the Loan Agreement.
SECTION 15. Concerning Pledgee
The recitals of fact herein shall be taken as statements of
Pledgor for which Pledgee assumes no responsibility. Pledgee makes no
representation to anyone as to the value of the Pledged Collateral or any part
thereof or as to the validity or adequacy of the security afforded or intended
to be afforded thereby or as to the validity of this Agreement. Pledgee shall
be protected in relying upon any notice, consent, request or other paper or
document believed by it to be genuine and correct and to have been signed by a
proper person. The permissive rights of Pledgee hereunder shall not be
construed as duties of Pledgee. Pledgee shall be under no obligation to take
any action toward the enforcement of this Agreement or rights or remedies in
respect of any of the Pledged Collateral except in the event Pledgee chooses
to exercise its rights and remedies hereunder it shall comply with its
obligations under this Agreement. Pledgee shall not be personally liable for
any action taken or omitted by it in good faith and reasonably believed by it
to be within the power or discretion conferred upon it by this Agreement.
SECTION 16. Notices
Any notice or request hereunder may be given to Pledgor or
to Pledgee at their respective addresses set forth below or at such other
address as may hereafter be specified in a notice designated as a notice of
change of address under this Section. Any notice or request hereunder shall be
given by (a) hand delivery, (b) registered or certified mail, return receipt
requested, (c) a recognized overnight delivery service, or (d) telefax to the
number set out below (or such other number as may hereafter be specified in a
notice designated as a notice of change of address) with telephone
communication to a duly authorized officer of the recipient confirming its
receipt as subsequently confirmed by registered or certified mail. Any notice
or other communication required or permitted pursuant to this Agreement shall
be deemed given (1) when personally delivered to any officer of the party to
whom it is addressed, (2) on the earlier of actual receipt thereof or three
(3) days following posting thereof by certified or registered mail, postage
prepaid, or (3) upon actual receipt thereof when sent by a recognized
overnight delivery service or (4) upon actual receipt thereof when sent by
telecopier to the number set forth below with telephone communication
confirming receipt and subsequently confirmed by registered, certified or
overnight mail to the address set forth below, in each case addressed to each
party at its address set forth below or at such other address as has been
furnished in writing by a party to the other by like notice:
(A) If to Pledgee, at: IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Xxxx & Hessen LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(B) If to Pledgor, at: Batteries Batteries, Inc.
c/o Founders Equity, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Brock, Fensterstock, Xxxxxxxxxxx,
XxXxxxxxx & Xxxx, LLC
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SECTION 17. Governing Law.
This Agreement and all rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the State of New York
applied to contracts to be performed wholly within the State of New York.
SECTION 18. Waivers.
PLEDGOR AND PLEDGEE EACH HEREBY EXPRESSLY WAIVE ANY AND ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS
AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OTHER AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE; AND PLEDGOR AND PLEDGEE EACH HEREBY AGREE AND
CONSENT THAT ANY SUCH ACTIONS OR PROCEEDINGS SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT EITHER PARTY MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
OTHER PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
SECTION 19. Litigation.
PLEDGOR EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF THE
SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK, AND OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR ALL PURPOSES
IN CONNECTION WITH THIS AGREEMENT. ANY JUDICIAL PROCEEDING BY PLEDGOR AGAINST
PLEDGEE INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY
ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT SHALL BE BROUGHT
ONLY IN THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. PLEDGOR
FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS
(INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO
EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN
CONNECTION WITH ANY PROCEEDINGS
HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF THE STATE OF NEW YORK OR THE
SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, OR BY PERSONAL SERVICE PROVIDED A REASONABLE TIME FOR APPEARANCE IS
PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE PERMISSIBLE UNDER THE RULES OF
SAID COURTS. PLEDGOR WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY
ACTION INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
SECTION 20. No Waiver; Cumulative Remedies.
No failure on the part of Pledgee to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof nor shall any single or partial exercise of any such right, power or
remedy by Pledgee preclude any other or further exercise thereof or the
exercise of any right, power or remedy. All remedies hereunder are cumulative
and are not exclusive of any other remedies provided by law.
SECTION 21. Severability.
In case any security interest or other right of Pledgee shall be
held to be invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not affect any other security interest or other right,
privilege or power granted under this Agreement.
SECTION 22. Counterparts.
This Agreement may be executed in one or more counterparts, each
of which may be executed by one or more of the parties hereto, but all of
which when taken together shall constitute but one agreement binding on all
the parties hereto.
SECTION 23. Miscellaneous
Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing,
signed by Pledgee and Pledgor. The provisions of this Agreement shall be
binding upon the successors and assigns of Pledgor. The term "Pledgee", as
used herein, shall include any successor or assign of Pledgee at the time
entitled to the pledged interest in the Pledged Collateral. The headings in
this Agreement are for purposes of reference only and shall not limit or
define the meaning hereof.
SECTION 24. Captions
The captions at various places in this Agreement are intended for
convenience only and do not constitute and shall not be interpreted as part of
this Agreement.
SECTION 25. Recapture
Anything in this Agreement to the contrary notwithstanding, if
Pledgee receives any payment or payments on account of the Indebtedness, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver, or any other party under the United States Bankruptcy Code,
as amended, or any other federal or state bankruptcy, reorganization,
moratorium or insolvency law relating to or affecting the enforcement of
creditors' rights generally, common law or equitable doctrine, then to the
extent of any sum not finally retained by Pledgee, Pledgor's obligations to
Pledgee shall be reinstated and this Agreement shall remain in full force and
effect (or be reinstated) until payment shall have been made to Pledgee, which
payment shall be due on demand.
IN WITNESS WHEREOF, Pledgor has caused this Agreement to be duly
executed as of the 6th day of January, 1997.
BATTERIES BATTERIES, INC.
By: /s/ Xxxxxx Xxxxx
___________________________
Its: Vice President, CFO COO
__________________________
IBJ XXXXXXXX BANK & TRUST
COMPANY, AS AGENT
By: /s/ Xxxxx Xxxx
___________________________
Its: Vice President
__________________________
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the 6th day of January, 1997, before me personally came
Xxxxxx Xxxxx, to me known, who being by me duly sworn, did depose and say that
he is a VP-COO-CFO of Batteries Batteries, Inc., the corporation described in
and which executed the above instrument; and that he signed his name thereto
by like order of the board of directors of said corporation.
/s/ Xxxx X. Xxxxxxx
--------------------------------
Notary Public
Xxxx X. Xxxxxxx
Notary Public, State of New York
No. 02VA5049635
Qualified in Nassau County
Commission Expires 9/18/97
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the 6th day of January, 1997, before me personally came
Xxxxx Xxxx, to me known, who being by me duly sworn, did depose and say that he
is a VP of IBJ Xxxxxxxx Bank & Trust Company, the corporation described in and
which executed the above instrument; and that he signed his name thereto by
like order of the board of directors of said corporation.
/s/ Xxxx X. Xxxxxxx
--------------------------------
Notary Public
Xxxx X. Xxxxxxx
Notary Public, State of New York
No. 02VA5049635
Qualified in Nassau County
Commission Expires 9/18/97
SCHEDULE A
TO PLEDGE AGREEMENT DATED AS OF JANUARY 6, 1997 BETWEEN
BATTERIES BATTERIES, INC. AND IBJ XXXXXXXX BANK & TRUST COMPANY, AS
AGENT.
PLEDGED STOCK
Class of Stock Certificate Par Number of
Issuer Stock Number Value Shares
Xxxxxx Electronics, Inc. Common 8 $1.00 7,500
Advanced Fox Antenna, Common 2 .01 100
Inc.
Battery Network, Inc. Common 1 -0- 333.33
Common 2 -0- 333.33
Common 3 -0- 333.33
Common 4 -0- 1,834
Common 5 -0- 1,827
Common 6 -0- 1,729
W.S. Battery & Sales Common 14 -0- 500
Company, Inc.
Batteries Acquisition Common 2 .01 100
Corp.
