EXHIBIT 41
(a) Secured Term Note and (b) Pledge Agreement, dated July 9, 1997
SECURED TERM NOTE
$1,100,000.00 New York, New York
July 9, 1997
FOR VALUE RECEIVED, the undersigned, an individual having an address at 000
Xx. Xxxxxxx Xxxxx, Xxxxxxx, XX 00000, hereby promises to pay on July 9, 1998 to
the order of NATIONAL WIRELESS HOLDINGS INC., ("Lender") at its offices located
at 000 Xxxxx Xxxx Xxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 or at such other
place as the Lender may from time to time designate to the undersigned in
writing the principal sum of ONE MILLION ONE HUNDRED THOUSAND and 00/100 DOLLARS
($1,100,000.00) or such other amount as may be due and owing from time to time
with interest at a rate per annum equal to eight percent (8%). In no event,
however, shall interest hereunder be in excess of the maximum interest rate
permitted by law.
A. PREPAYMENT: This Note may be prepaid without premium or penalty, in
whole or in part, upon not less than five days prior written notice.
B. DEFAULT; REMEDY. If any one or more of the following events of default
shall occur, that is to say:
1. default shall be made in the payment of any principal or interest
of this Note when the same shall become due and payable whether at
maturity, by acceleration, by notice of intention to prepay or otherwise;
2. any obligation of the undersigned other than its obligations to
Lender hereunder becomes or is declared to be due and payable and shall not
have been paid within thirty (30) days thereto;
3. the undersigned shall become unable to pay its debts as they
mature, make a general assignment for the benefit of creditors, commence or
cause to be commenced a meeting of its creditors or take advantage of any
of the insolvency laws, or a case is commenced or a petition in bankruptcy
or for an arrangement or reorganization under the Federal Bankruptcy Code
(i) is filed against the undersigned, or (ii) is filed by the undersigned,
or a custodian or receiver (or other court designee performing the
functions of a receiver) is appointed for or takes possession of the
undersigned's assets or affairs, or an order for relief in a case commenced
under the Federal Bankruptcy Code is entered;
4. any judgment or judgments against the undersigned or its property
for any amount remains unpaid, undischarged, unsatisfied, unbonded or
undismissed for a period of ten (10) days, or a levy, sequestration or
attachment against the undersigned or its property for any amount remains
unpaid, undischarged, unstayed, unsatisfied or undismissed for a period of
ten (10) days;
5. any guaranty of the obligations of the undersigned to Lender is
terminated or breached, or if any guarantor of the obligations of the
undersigned to the Lender attempts to terminate, challenge the validity of,
or its liability under, any such guaranty or similar agreement, or the
undersigned terminates any guaranty which it has given to Lender to secure
the indebtedness of any third party; or
6. any event of default shall occur under any agreement between
Lender and the undersigned which is not cured within any applicable grace
period.
then this Note (x)(i) upon the occurrence of an event of default pursuant to
subsection 3 of this Section (B) shall immediately become due and payable,
without notice, together with reasonable attorneys' fee and (ii) upon the
occurrence of any other event of default, which is not cured within five (5)
days after receipt of written notice of such default, shall at the option of the
Lender, immediately become due and payable, without notice, together with
reasonable attorneys' fees if the collection hereof is placed in the hands of an
attorney to obtain or enforce payment hereof, and (y) shall bear interest at a
rate of interest per annum equal to fifteen percent (15%).
C. GOVERNING LAW. This Note is being delivered in the State of New York,
and shall be construed and enforced in accordance with the laws of such State.
Any judicial proceeding by the undersigned against Lender involving, directly
or indirectly, any matter or claim in any way arising out of, related to or
connected with this Note, shall be brought only in federal or state court
located in the City of New York, State of New York. Any judicial proceeding
brought against the undersigned with respect to this Note may be brought in any
court of competent jurisdiction in the City of New York, State of New York,
United States of America, and, by execution and delivery of this Note, the
undersigned accepts, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Note or any related agreement.
Nothing herein shall affect the right to serve process in any manner permitted
by law or shall limit the right of Lender to bring proceedings against the
undersigned in the courts of any other jurisdiction. The undersigned waives any
objection to jurisdiction and venue of any action instituted hereunder and shall
not assert any defense based on lack of jurisdiction or venue or based upon
FORUM NON CONVENIENS.
D. WAIVER OF JURY TRIAL. THE UNDERSIGNED EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER
THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE; AND THE UNDERSIGNED HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR
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CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT
AS WRITTEN EVIDENCE OF THIS WAIVER OF THE RIGHT TO TRIAL BY JURY.
The undersigned expressly waives any presentment, demand, protest, notice
of protest, or notice of any kind.
__________________________
Xxxxxxx X. Xxxxxxxx
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PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of July 9, 1997, made by Xxxxxxx X. Xxxxxxxx,
("Pledgor"), to NATIONAL WIRELESS HOLDINGS INC. (the "Pledgee").
BACKGROUND TO THE AGREEMENT
Pledgor executed in favor of Pledgee a $1,100,000 Promissory Note dated as
of July 9, 1997, (as amended, modified and supplemented from time to time, the
"Note").
Pledgor is an officer and director of Pledgee.
In order to induce Pledgee to provide the financial accommodations
described in the Note, Pledgor has agreed to pledge and grant a security
interest to Pledgee in the Pledged Stock (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and for other good
and valuation 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 Note shall have such
defined meanings when used herein.
SECTION 2. PLEDGE
Pledgor hereby pledges, assigns, hypothecates, transfers and grants a
security interest to Pledgee in 100,000 shares of Common Stock, $.01 par value
per share (the "Pledged Stock") of the Pledgee, 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;
SECTION 3. INDEBTEDNESS SECURED
This pledge is made to secure, and the Pledged Stock is security for, the
payment of all the obligations or liabilities of Pledgor to Pledgee under the
Note (the "Indebtedness").
SECTION 4. DELIVERY OF PLEDGED STOCK
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 Pledgee, as issuer of
the Pledged Stock, upon demand by Pledgee to deliver any certificates,
instruments or other distributions issued in connection with the Pledged Stock
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 Stock 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 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 Stock and the proceeds thereof,
subject to no prior security interest, lien, charge or encumbrance, or to
any agreement purporting to grant to any third party a security interest in
the property or assets of Pledgor which would include the Pledged Stock;
(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;
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(i) No consent, approval, authorization or other order of any person,
firm, corporation or other entity 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 Stock 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 Stock 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,
firm, corporation or other entity is required; and
(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.
The representations and warranties set forth in this Section 5 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 Note is irrevocably terminated:
(a) Pledgor will not sell, assign, transfer, convey, or otherwise
dispose of its rights in or to the Pledged Stock or any interest therein;
nor will Pledgor create, incur or permit to exist any pledge, mortgage,
lien, charge, encumbrance or any security interest whatsoever with respect
to any of the Pledged Stock 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 Stock against the claims of any
person, firm, corporation or other entity;
(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 Stock in form satisfactory to
Pledgee. Until receipt thereof, this Agreement shall constitute Pledgor's
proxy to Pledgee or its nominee to vote all shares of Pledged Stock then
registered in Pledgor's name; and
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(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.
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 Stock, (ii) be entitled to give
consents, waivers and ratifications in respect of the Pledged Stock (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 Stock. 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 Stock 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 Stock, whenever paid or made,
shall be delivered to Pledgee to hold as Pledged Stock 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 Stock 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 Note;
(b) Pledgor shall default in the performance of any of its
obligations under any agreement between Pledgor and Pledgee, including,
without limitation, this Agreement; and
(c) Any representation, warranty, statement or covenant made or
furnished to Pledgee by or on behalf of Pledgor proves to have been false
in any material respect when made or furnished or is breached, violated or
not complied with; or
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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 Stock into its name, or into
the name of its nominee or nominees;
(b) Exercise all corporate rights with respect to the Pledged Stock
including, without limitation, all rights of conversion, exchange,
subscription or any other rights, privileges or options pertaining to any
shares of the Pledged Stock 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 Stock upon the merger, consolidation,
reorganization, recapitalization or other readjustment of the issuer
thereof, or upon the exercise by such issuer of any right, privilege or
option pertaining to any of the Pledged Stock, and, in connection
therewith, to deposit and deliver any and all of the Pledged Stock 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 Stock 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 Stock so sold free from any such right or equity of
redemption. All moneys received by Pledgee hereunder whether upon sale of the
Pledged Stock or any part thereof or otherwise shall be held by Pledgee and
applied by it as provided in Section 11 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 Stock 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 11 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
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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. PRIVATE SALE
Pledgor recognizes that Pledgee shall be unable to effect a public sale of
all or part of the Pledged Stock by reason of certain prohibitions contained in
the Securities Act of 1933, as amended (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 Stock 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 register the Pledged Stock for public sale under the Securities Act or to
delay sale of any Pledged Stock for the period of time necessary to permit the
Pledgee to register the Pledge Stock.
SECTION 11. PROCEEDS OF SALE
The proceeds of any collection, recovery, receipt, appropriation,
realization or sale of the Pledged Stock 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 Stock (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 of 15% per annum 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, firms, corporations or other entities 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.
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SECTION 12. 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 Stock
registered in the name of Pledgor.
SECTION 13. TERMINATION
This Agreement shall terminate and Pledgor shall be entitled to the
return, at Pledgor's expense, of such of the Pledged Stock 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 Note.
SECTION 14. 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 Stock 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 Stock. 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 15. 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) telex
or telegram, subsequently confirmed by registered or certified mail, or (d) fax
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 (a) when personally delivered to any officer of the party to whom
it is addressed, (b) on the earlier of actual receipt thereof or three (3) days
following posting thereof by certified or registered mail, postage prepaid, or
(c) upon actual receipt thereof when sent by a recognized overnight delivery
service or (d) upon actual receipt thereof when sent by fax to the number set
forth below with telephone communication confirming receipt 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:
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(A) If to Pledgee, at: National Wireless Holdings Inc.
000 Xxxxx Xxxx Xxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxx & Hessen LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(B) If to Pledgor, at: Xxxxxxx X. Xxxxxxxx
000 Xx. Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
SECTION 16. 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 17. WAIVERS.
(a) 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.
(b) Pledgee may at any time and from time to time, either before or after
the maturity thereof, without notice to or further consent of Pledgor, extend
the time of payment
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of, exchange or surrender any collateral for, renew or extend any of the
Indebtedness or increase or decrease the interest rate thereon, and may also
make any agreement with any other party to or person liable on any of the
Indebtedness, or interested therein, for the extension, renewal, payment,
compromise, discharge or release thereof, in whole or in part, or for any
modification of the terms thereof or of any agreement between Pledgee and any
such other party or person, or make any election of rights Pledgee may deem
desirable 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 without
in any way impairing or affecting this Agreement.
(c) Pledgor waives any rights to interpose any defense, counterclaim or
offset of any nature and description which it may have or which may exist
between Pledgee and Pledgor with respect to Pledgor's obligations under this
Agreement, or which Pledgor may assert on the underlying debt, including but not
limited to failure of consideration, breach of warranty, fraud, payment (other
than cash payment in full of the Indebtedness), statute of frauds, bankruptcy,
infancy, statute of limitations, accord and satisfaction, and usury.
(d) Pledgor further waives presentment to or demand of payment from anyone
whomsoever liable upon any of the Indebtedness, protest, notices of presentment,
non-payment or protest and notice of any sale of collateral security or any
default of any sort.
SECTION 18. 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
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BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
SECTION 19. 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 20. 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 21. 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 22. 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 Stock. The headings in this Agreement are for purposes
of reference only and shall not limit or define the meaning hereof.
SECTION 23. 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.
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IN WITNESS WHEREOF, Pledgor and Pledgee have caused this Agreement to be
duly executed as of the ___ day of ____________, 1997.
______________________________
Xxxxxxx X. Xxxxxxxx
NATIONAL WIRELESS HOLDINGS INC.
By:___________________________
Its:_________________________
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