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EXHIBIT 7C
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), dated as of February 18,
1998, between Asesoria Xxxxx Xxxxx, S.C, a Mexican partnership (the "Pledgor"),
and Xxxx Xxxxx (the "Secured Party").
W I T N E S S E T H:
WHEREAS, the Pledgor has entered into that certain Stock Purchase
Agreement dated as of February 18, 1998 (the "Purchase Agreement" certain
capitalized terms used herein which are defined in the Purchase Agreement shall
have the same meanings when used herein, unless otherwise defined herein) with
the Secured Party, pursuant to which, among other things, the Pledgor has
agreed to purchase and the Secured Party has agreed to sell to the Pledgor the
Shares and Pledgor has agreed to execute and deliver the Note; and
WHEREAS, under the terms of the Purchase Agreement, that the Pledgor
has agreed to execute and deliver this Security Agreement and grant the
security interests contemplated hereby; and
WHEREAS, this Agreement, the Purchase Agreement, and the Note are
hereinafter sometimes referred to as the "Loan Documents".
NOW, THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged by it, and in order to induce the Secured party to
sell the Shares, Pledgor agrees with the Secured Party, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Collateral" is defined in Section 2.1.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from stock splits, reclassifications, warrants,
options, non-cash dividends and other distributions (whether similar or
dissimilar to the foregoing) on or with respect to any Pledged Shares or other
shares of capital stock constituting Collateral, but shall not mean Dividends.
"Dividends" means cash dividends and cash distributions with respect
to any Pledged Shares made out of capital surplus.
"Initial Pledged Shares" means the 200,000 shares of Common Stock of
UniMark.
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"Pledged Property" means all Pledged Shares, and all other pledged
shares of capital stock, all other securities, all assignments of any amounts
due or to become due, all other instruments which are now being delivered by
the Pledgor to the Secured Party or may from time to time hereafter be
delivered by the Pledgor to the Secured Party for the purpose of pledge under
this Agreement or any other Loan Document, and all proceeds of any of the
foregoing.
"Pledged Shares" means the Initial Pledged Shares and all other shares
of capital stock of UniMark, if any, which are delivered by the Secured Party
as Pledged Property hereunder.
"Pledgor" is defined in the preamble.
"Purchase Agreement" is defined in the first recital.
"Secured Obligations" is defined in Section 2.2.
"U.C.C." means the Uniform Commercial Code as in effect in the State
of Texas.
"UniMark" means The UniMark group, Inc., a Texas corporation.
SECTION 1.2 Purchase Agreement Definitions. Etc. Unless
otherwise defined herein or the context otherwise requires, terms used in this
Agreement, including its preamble and recitals, have the meanings provided in
the Purchase Agreement. References to the masculine gender shall include the
feminine and neuter genders unless the context otherwise requires.
SECTION 1.3 U.C.C. Definitions. Unless otherwise defined herein
or the context otherwise requires, terms for which meanings are provided in the
U.C.C. are used in this Agreement, including its preamble and recitals, with
such meanings.
ARTICLE 2
PLEDGE
SECTION 2.1 Grant of Security Interest. Pledgor hereby pledges,
assigns, charges, mortgages, delivers and transfers to the Secured Party, and
hereby grants to the Secured Party, a continuing security interest in, all of
the following property (the "Collateral"):
(a) the Initial Pledged Shares;
(b) all Pledged Shares issued from time to time;
(c) all other Pledged Property, whether now or hereafter delivered
to the Secured Party in connection with this Agreement;
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(d) all Dividends, Distributions, interest and other payments and
rights with respect to any Pledged Property; and
(e) all proceeds of any of the foregoing.
SECTION 2.2 Security for Secured Obligations. This Agreement
secures the payment in full of the Note, whether for principal, interest,
costs, fees, expenses or otherwise, and all obligations now or hereafter
existing (collectively, the "Secured Obligations").
SECTION 2.3 Delivery of Pledged Property; Registration of Pledge,
Transfer, etc. All certificates and Instruments representing or evidencing any
Collateral, including all Pledged Shares, shall be delivered to and held by or
on behalf of the Secured Party pursuant hereto, shall be in suitable form for
transfer by delivery, and shall be accompanied by all necessary Instruments of
transfer or assignment, duly executed in blank.
SECTION 2.4 Continuing Security Interest; Transfer of Note. This
Agreement shall
(a) create a continuing security interest in the Collateral;
(b) remain in full force and effect until payment in full of all
Secured Obligations;
(c) be binding upon Pledgor, its successors and assigns; provided
that Pledgor may not assign any of its rights or obligations
hereunder without the prior written consent of the Secured
Party; and
(d) inure to the benefit of the Secured Party and his heirs and
legal representatives.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Warranties, etc. Pledgor represents and warrants unto
the Secured Party that as at the date of each pledge hereunder (including each
pledge of Pledged Shares) by Pledgor to the Secured Party of any Collateral,
(a) Pledgor has all requisite power and authority, and has taken
all necessary corporate action, to execute and deliver and perform its
obligations under this Pledge Agreement and to pledge the Collateral
hereunder.
(b) Pledgor will be the legal and beneficial owner of, and will
have good and marketable title to (and will have full right and
authority to pledge and assign) all Collateral, free and clear of all
Liens or other charges or encumbrances, except any Lien or security
interest granted pursuant hereto in favor of the Secured Party.
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(c) The delivery of the Collateral (including the delivery of the
Initial Pledged Shares) to the Secured Party will be effective to
create a valid, perfected, first priority security interest in such
Collateral and all proceeds thereof, securing the Secured Obligations,
and no filing or other action will be necessary to perfect or protect
such security interest.
(d) In the case of any Pledged Shares constituting Collateral, all
of such Pledged Shares will be duly authorized and validly issued,
fully paid, and non-assessable.
ARTICLE 4
COVENANTS
SECTION 4.1 Protect Collateral; Further Assurances. etc. Pledgor
will not sell, assign, transfer, pledge or encumber in any other manner the
Collateral (except in favor of the Secured Party hereunder). Pledgor will
warrant and will use its best efforts to defend the right and title herein
granted unto the Secured Party in and to the Collateral (and all right, title
and interest represented by the Collateral) against the claims and demands of
all Persons whomsoever. Pledgor agrees that at any time, and from time to
time, at the expense of Pledgor, Pledgor will promptly execute and deliver all
further Instruments, and take all further action, that may be necessary or
desirable, or that the Secured Party may reasonably request, in order to
perfect and protect any security interest granted or purported to be granted
hereby or to enable the Secured Party to exercise and enforce its rights and
remedies hereunder with respect to any Collateral.
SECTION 4.2 Stock Powers, etc. Pledgor agrees that all Pledged
Shares (and all other shares of capital stock constituting Collateral)
delivered by Pledgor pursuant to this Agreement will be accompanied by duly
executed undated blank stock powers, or other equivalent Instruments of
transfer acceptable to the Secured Party. Pledgor will, from time to time upon
the request of the Secured Party, promptly deliver to the Secured Party such
stock powers, Instruments and similar documents, satisfactory in form and
substance to the Secured Party, with respect to the Collateral as the Secured
Party may reasonably request and will, from time to time upon the request of
the Secured Party after the occurrence of any Default, promptly transfer any
Pledged Shares or other shares of Stock constituting Collateral into the name
of the Secured Party or any nominee designated by the Secured Party.
SECTION 4.3 Continuous Pledge. Pledgor will, at all times, keep
pledged to the Secured Party pursuant hereto all Pledged Shares and all other
shares of Stock constituting Collateral, all Dividends and Distributions with
respect thereto, and all other Collateral and other securities, instruments,
proceeds and rights from time to time received by or distributable to Pledgor
in respect of any Collateral.
SECTION 4.4 Voting Rights; Dividends, etc. Pledgor agrees to deliver
all Distributions at any time received by it to the Secured Party to be held as
Collateral hereunder and, in addition, to deliver (properly endorsed where
required hereby or requested by the Secured Party) to the Secured Party:
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(a) after any Default shall have occurred and be continuing or if
any Default shall occur as a result thereof, promptly upon receipt
thereof by Pledgor and without any request therefor by the Secured
Party, all Dividends, all other cash payments and all proceeds of the
Collateral, all of which shall be held by the Secured Party as
additional collateral; and
(b) after any Default shall have occurred and be continuing,
promptly upon request of the Secured Party, such proxies and other
documents as may be necessary to allow the Secured Party to exercise
the voting power with respect to any share of capital stock
constituting Collateral;
provided, however, that unless a Default shall have occurred and be continuing
or result therefrom, Pledgor shall be entitled to exercise, in its reasonable
judgment, but in a manner not inconsistent with the terms of the Purchase
Agreement or any other Loan Document (including this Agreement), the voting
power and all other incidental rights of ownership with respect to any Pledged
Shares or other shares of capital stock constituting Collateral (subject to
Pledgor's obligation to deliver to the Secured Party such Pledged Shares and
other shares in pledge hereunder).
All Dividends, Distributions, cash payments and proceeds which may at any time
and from time to time be held by Pledgor but which Pledgor is then obligated to
deliver to the Secured Party, shall, until delivery to the Secured Party, be
held by Pledgor separate and apart from its other property in trust for the
Secured Party. The Secured Party agrees that unless a Default shall have
occurred and be continuing, the Secured Party shall, upon the written request
of Pledgor, promptly deliver such proxies and other documents, if any, as shall
be reasonably requested by Pledgor which are necessary to allow Pledgor to
exercise voting power with respect to any share of capital stock (including
Pledged Shares) constituting Collateral; provided, however that no vote shall
be cast, or consent, waiver or ratification given, or action taken by Pledgor
that would impair any Collateral or be inconsistent with or violate any
provision of the Purchase Agreement or any other Loan Document (including this
Agreement).
ARTICLE 5
REMEDIES
SECTION 5.1 Actions upon Event of Default. In addition to its
rights and remedies provided hereunder, whenever an Event of Default shall
occurred and be continuing, the Secured Party shall have all rights and
remedies of a secured party upon default under the U.C.C. or other applicable
law. Any notification required by law of any intended disposition by the
Secured Party of any of the Collateral shall be deemed reasonably and properly
given if given at least 15 days before such disposition. Without limitation of
the above, the secured Party may, whenever an Event of Default shall have
occurred and be continuing, without prior notice to Pledgor, take all or any of
the following actions:
(a) transfer all or any part of the Collateral into the name of
the Secured Party or its nominee, with or without disclosing that such
Collateral is subject to the Lien and security interest hereunder;
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(b) notify the parties obligated on any of the Collateral to make
payment to the Secured Party of any amount due or to become due
thereunder;
(c) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part thereof,
or compromise or extend or renew for any period (whether or not longer
than the original period) any obligations of any nature of any party
with respect thereto;
(d) endorse any checks, drafts, or other writings in Pledgor's
name to allow collection of the Collateral;
(e) take control of any proceeds of the Collateral; and
(f) execute (in the name, place and stead of Pledgor)
endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the Collateral.
SECTION 5.2 Attorney-in-Fact. Pledgor hereby irrevocably appoints
the Secured Party its attorney-in-fact, with full authority in the place and
stead of Pledgor and in the name of Pledgor, the Secured Party, or otherwise,
from time to time in the Secured Party's discretion, to take any action and to
execute any Instrument which the Secured Party may deem necessary or advisable
to accomplish the purposes of this Agreement, including, upon the occurrence
and continuance of an Event of Default, all actions described in Section 5.1.
SECTION 5.3 Private Sales.
(a) Pledgor recognizes that the Secured Party may be unable to
effect a public sale of any or all the Pledged Shares by reason of
certain prohibitions contained in the Securities Act of 1933, as
amended (the "Securities Act") and applicable state securities laws or
otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers that 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 acknowledges and agrees that any such private
sale may result in prices and other terms less favorable than if such
sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in
a commercially reasonable manner. The Secured Party shall be under no
obligation to delay sale of any of the Pledged Shares for the period
of time necessary to permit the Pledgor to register such securities
for public sale under the Securities Act, or under applicable state
securities laws, even if UniMark would agree to do so.
(b) Pledgor further agrees to use its best efforts to do or cause
to be done all such acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Shares pursuant to this
Section 5.3 valid and binding and in compliance with any and all other
applicable Requirements of Law.
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ARTICLE 6
MISCELLANEOUS
SECTION 6.1 Loan Document. This Agreement is a Loan Document
executed pursuant to the Purchase Agreement and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof.
SECTION 6.2 Amendments, etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure by Pledgor herefrom
shall in any event be effective unless the same shall be in writing, signed by
the Secured Party and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it is given.
SECTION 6.3 Obligations Not Affected. The obligations of Pledgor
under this Agreement shall remain in full force and effect without regard to,
and shall not be impaired or affected by:
(a) any amendment or modification or addition or supplement to the
Purchase Agreement, any Note, any other Loan Document, any Instrument
delivered in connection therewith or any assignment or transfer
thereof;
(b) any exercise, non-exercise or waiver by the Secured Party of
any right, remedy, power or privilege under or in respect of, or any
release of any guaranty or collateral provided pursuant to, this
Agreement, the Purchase Agreement, or any Loan Document;
(c) any waiver, consent, extension, indulgence or other action or
inaction in respect of this Agreement, the Purchase Agreement or any
Loan Document or any assignment or transfer of any thereof; or
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like, death or
incompetency of the Pledgor or any other Person, whether or not
Pledgor shall have notice or knowledge of any of the foregoing.
SECTION 6.4 Protection of Collateral. The Secured Party may from
time to time, at its option, perform any act which Pledgor agrees hereunder to
perform and which Pledgor shall fail to perform after being requested in
writing to so perform (it being understood that no such request need be given
after the occurrence and during the continuance of a Default) and the Secured
Party may from time to time take any other action which the Secured Party
reasonably deems necessary for the maintenance, preservation or protection of
any of the Collateral or of its security interest therein.
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SECTION 6.5 Governing Law; Jurisdiction.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TEXAS.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY TEXAS STATE OR FEDERAL COURT SITTING IN DALLAS, TEXAS IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR RELATED DOCUMENT (AND PLEDGOR AGREES THAT SUCH
JURISDICTION WILL BE EXCLUSIVE WITH RESPECT TO CLAIMS BROUGHT BY PLEDGOR
AGAINST THE SECURED PARTY), AND EACH HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
TEXAS STATE OR FEDERAL COURT. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF ANY
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(c) Pledgor hereby irrevocably designates, appoints and empowers
Xxxxxx Xxxxxxx Xxxxx, as its authorized agent to receive, for and on its behalf
and on behalf of its property, service of process in the State of Texas when
and as such legal actions or proceedings may be brought in the courts of the
State of Texas or of the United States of America sitting in Texas, and such
service of process shall be deemed complete upon the date of delivery thereof
to such agent whether or not such agent gives notice thereof to Pledgor, or
upon the earliest of any other date permitted by applicable law. It is
understood that a copy of said process served on such agent will as soon as
practicable be forwarded to Pledgor, at its address set forth below, but
Pledgor's failure to receive such copy shall not affect in any way the service
of said process on said agent as the agent of Pledgor. Pledgor irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of the copies thereof by certified
mail, return receipt requested, postage prepaid, to Pledgor at its address set
forth below, such service to become effective upon the earlier of (i) the date
10 calendar days after such mailing or (ii) any earlier date permitted by
applicable law. Pledgor agrees that it will at all times continuously maintain
an agent to receive service of process in the State of Texas and in the event
that, for any reason, the agent named above or its successor shall no longer
serve as its agent to receive service of process in the State of Texas on its
behalf, it shall promptly appoint a successor so to serve and shall advise the
Secured Party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
ASESORIA XXXXX XXXXX, S.C
By: /s/ Xxxxxx Xxxxxxx Xxxxx
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Xxxxxx Xxxxxxx Xxxxx, An Authorized Officer
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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