NATIONSBANK, N. A. Customer# 955491
Date: August 15, 1997
PLEDGE AGREEMENT
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BANK/SECURED PARTY: PLEDGOR(S)/DEBTOR(S):
NationsBank, N.A.
Banking Center:
Kanders Florida Holdings, Inc.
Private Client Group 0000 X. Xxxxx Xxxxxxxxx, Xxxxx 000X
000 0xx Xxxxxx Xxxx Xxxxx, Xxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
County: County:
(Street address including county)
(Name and street address including county)
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Pledgor/Debtor is: Corporation
Address is Pledgor's/Debtor's:
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1. SECURITY INTEREST. For good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Pledgor/Debtor (hereinafter
referred to as "Pledgor") pledges, assigns and grants to Bank a security
interest and lien in the Collateral (hereinafter defined) to secure the
payment and the performance of the Obligation (hereinafter defined).
2. COLLATERAL. The security interest is granted in the following collateral
(the "Collateral"):
A. DESCRIPTION OF COLLATERAL.
BROKERAGE ACCOUNT: Securities and/or commodities account(s) number PSA
041319 (the "Account") held by NationsBanc Investments, Inc. ("Broker")
pursuant to the terms of any agreement for custody, investment management,
investment advisory or similar services between Broker and Pledgor, together
with all property now or hereafter held in the Account, specifically including
but not limited to all investment property, documents, instruments, general
intangibles, certificated and uncertificated securities, securities in
book-entry form, commodity contracts, mutual funds, U.S. government and state
obligations, deposit accounts and cash.
B. PROCEEDS. All additions, substitutes and replacements for and
proceeds of the above Collateral (including all income and benefits resulting
from any of the above, such as dividends payable or distributable in cash,
property or stock; interest, premium and principal payments; redemption
proceeds and subscription rights; and shares or other proceeds of conversions
or splits of any securities in the Collateral). Any investment property and/or
securities received by Pledgor, which shall comprise such additions,
substitutes and replacements for, or proceeds of, the Collateral, shall be
held in trust for Bank and shall be delivered immediately to Bank. Any cash
proceeds shall be held in trust for Bank and upon request shall be delivered
immediately to Bank.
3. OBLIGATION.
A. DESCRIPTION OF OBLIGATION. The following obligations ("Obligation")
are secured by this Agreement:
I. PROMISSORY NOTE: All debt arising under promissory note dated
August 15, 1997 in the principal face amount of $16,000,000.00 executed by
Kanders Florida Holdings, Inc. payable to the order of NationsBank, N.A., and
any and all renewals, extensions and rearrangements thereof;
II. All costs and expenses incurred by Bank, including reasonable
attorney's fees, to obtain, preserve, perfect , enforce and defend this
Agreement and maintain, preserve, collect and realize upon the Collateral,
together with interest thereon at the highest rate allowed by law, or if none,
25% per annum;
III. All amounts which may be owed to Bank pursuant to all other loan
documents executed in connection with the indebtedness described in subpart i.
above.
In the event any amount paid to Bank on any Obligation is subsequently
recovered from Bank in or as a result of any bankruptcy, insolvency or
fraudulent conveyance proceeding involving an obligor of the Obligation other
than Pledgor, Pledgor shall be liable to Bank for the amounts so recovered up
to the fair market value of the Collateral whether or not the Collateral has
been released or the security interest terminated. In the event the Collateral
has been released or the security interest terminated, the fair market value
of the Collateral shall be determined, at Bank's option, as of the date the
Collateral was released, the security interest terminated, or said amounts
were recovered.
B. USE OF PROCEEDS. The proceeds of any indebtedness or obligation
secured by the Collateral WILL NOT BE used directly or indirectly to purchase
or carry any "margin stock" as that term is defined in Regulation U of the
Board of Governors of the Federal Reserve System, or extend credit to or
invest in other parties for the purpose of purchasing or carrying any such
"margin stock," or to reduce or retire any indebtedness incurred for such
purpose or otherwise in a manner which would violate Regulations G, T or U.
4. PLEDGOR'S WARRANTIES. Pledgor hereby represents and warrants to Bank
as follows:
A. FINANCING STATEMENTS. Except as may be noted by schedule attached
hereto and incorporated herein by reference, no financing statement covering
the Collateral is or will be on file in any public office, except the
financing statements relating to this security interest, and no security
interest, other than the one herein created, has attached or been perfected in
the Collateral or any part thereof.
B. OWNERSHIP. Pledgor owns, or will use the proceeds of any loans by Bank
to become the owner of, the Collateral free from any setoff, claim,
restriction, lien, security interest or encumbrance except liens for taxes not
yet due and payable and the security interest hereunder.
C. POWER AND AUTHORITY. Pledgor has full power and authority to make this
Agreement, and all necessary consents and approvals of any persons, entities,
governmental or regulatory authorities and securities exchanges have been
obtained to effectuate the validity of this Agreement.
5. PLEDGOR'S COVENANTS. Until full payment and performance of all of the
Obligation and termination or expiration of any obligation or commitment of
Bank to make advances or loans to Pledgor, unless Bank otherwise consents in
writing:
A. OBLIGATION AND THIS AGREEMENT. Pledgor shall perform all of its
agreements herein and in any other agreements between it and Bank.
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B. OWNERSHIP OF COLLATERAL. Pledgor shall defend the Collateral against
all claims and demands of all persons at any time claiming any interest
therein adverse to Bank. Pledgor shall keep the Collateral free from all liens
and security interests except those for taxes not yet due and payable and the
security interest hereby created.
C. BANK'S COSTS. Pledgor shall pay all costs necessary to obtain,
preserve, perfect, defend and enforce the security interest created by this
Agreement, collect the Obligation, and preserve, defend, enforce and collect
the Collateral, including but not limited to taxes, assessments, reasonable
attorney's fees, legal expenses and expenses of sales. Whether the Collateral
is or is not in Bank's possession, and without any obligation to do so and
without waiving Pledgor's default for failure to make any such payment, Bank
at its option may pay any such costs and expenses and discharge encumbrances
on the Collateral, and such payments shall be a part of the Obligation and
bear interest at the rate set out in the Obligation. Pledgor agrees to
reimburse Bank on demand for any costs so incurred.
D. INFORMATION AND INSPECTION. Pledgor shall (i) promptly furnish Bank
any information with respect to the Collateral requested by Bank; (ii) allow
Bank or its representatives to inspect and copy, or furnish Bank or its
representatives with copies of, all records relating to the Collateral and the
Obligation; and (iii) promptly furnish Bank or its representatives with any
other information Bank may reasonably request.
E. ADDITIONAL DOCUMENTS. Pledgor shall sign and deliver any papers
furnished by Bank which are necessary or desirable in the judgment of Bank to
obtain, maintain and perfect the security interest hereunder and to enable
Bank to comply with any federal or state law in order to obtain or perfect
Bank's interest in the Collateral or to obtain proceeds of the Collateral.
F. NOTICE OF CHANGES. Pledgor shall notify Bank immediately of (i) any
material change in the Collateral, (ii) a change in Pledgor's residence or
location, (iii) a change in any matter warranted or represented by Pledgor in
this Agreement, or in any of the loan documents relating to the Obligation or
furnished to Bank pursuant to this Agreement, and (iv) the occurrence of an
Event of Default as defined herein.
G. POSSESSION OF COLLATERAL. Pledgor shall deliver a copy of this
Agreement (or other notice acceptable to Bank) to any Broker, financial
intermediary, or any other person in possession of any of the Collateral or on
whose books the interest of Pledgor in the Collateral appears, and such
delivery shall constitute notice to such person of Bank's security interest in
the Collateral and shall constitute Pledgor's instruction to such person to
note Bank's security interest on their books and records, or deliver to Bank
certificates or other evidence of the Collateral promptly upon Bank's request.
Pledgor shall deliver all investment securities and other instruments and
documents which are a part of the Collateral and in Pledgor's possession to
Bank immediately, or if hereafter acquired, immediately following acquisition,
in a form suitable for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank with signatures appropriately
guaranteed in form and substance suitable to Bank.
H. CHANGE OF NAME/STATUS. Pledgor shall not change its name, change its
corporate status, use any trade name or engage in any business not reasonably
related to its business as presently conducted.
I. POWER OF ATTORNEY. Pledgor appoints Bank and any officer thereof as
Pledgor's attorney-in-fact with full power in Pledgor's name and on Pledgor's
behalf upon and during the continuance of an Event of Default, to do every act
which Pledgor is obligated to do or may be required to do hereunder; however,
nothing in this paragraph shall be construed to obligate Bank to take any
action hereunder nor shall Bank be liable to Pledgor for failure to take any
action hereunder. This appointment shall be deemed a power coupled with an
interest and shall not be terminable as long as the Obligation is outstanding
and shall not terminate on the disability or incompetence of Pledgor. Without
limiting the generality of the foregoing, Bank shall have the right and power
to receive, indorse and collect all checks and other orders for the payment of
money made payable to Pledgor representing any dividend, interest payment or
other distribution payable in respect of the Collateral or any part thereof.
J. OTHER PARTIES AND OTHER COLLATERAL. No renewal or extensions of or any
other indulgence with respect to the Obligation or any part thereof, no
modification of the document(s) evidencing the Obligation, no release of any
security, no release of any person (including any maker, indorser, guarantor
or surety) liable on the Obligation, no delay in enforcement of payment, and
no delay or omission or lack of diligence or care in exercising any right or
power with respect to the Obligation or any security therefor or guaranty
thereof or under this Agreement shall in any manner impair or affect the
rights of Bank under any law, hereunder, or under any other agreement
pertaining to the Collateral. Bank need not file suit or assert a claim for
personal judgment against any person for any part of the Obligation or seek to
realize upon any other security for the Obligation, before foreclosing or
otherwise realizing upon the Collateral. Pledgor waives any right that can be
waived to the benefit of or to require or control application of any other
security or proceeds thereof, and agrees that Bank shall have no duty or
obligation to Pledgor to apply to the Obligation any such other security or
proceeds thereof.
K. WAIVERS BY PLEDGOR. Pledgor waives notice of the creation, advance,
increase, existence, extension or renewal of, and of any indulgence with
respect to, the Obligation; waives presentment, demand, notice of dishonor,
and protest; waives notice of the amount of the Obligation outstanding at any
time, notice of any change in financial condition of any person liable for the
Obligation or any part thereof, notice of any Event of Default, and all other
notices respecting the Obligation; and agrees that maturity of the Obligation
and any part thereof may be accelerated, extended or renewed one or more times
by Bank in its discretion, without notice to Pledgor. Pledgor waives any right
to require that any action be brought against any other person or to require
that resort be had to any other security or to any balance of any deposit
account. Pledgor further waives any right of subrogation or to enforce any
right of action against any other pledgor until the Obligation is paid in
full.
L. ADDITIONAL PROVISIONS. If one or more Riders to this Agreement are
executed by Pledgor, the covenants and provisions of each such Rider shall be
incorporated by reference into this Agreement.
6. MAINTENANCE OF COLLATERAL.
A. MAINTENANCE OF COLLATERAL. At all times during the term of the
Agreement, Pledgor agrees to maintain as security for the Obligation
Collateral of a type described on Schedule I with an Adjusted Collateral Value
(as determined herein) in excess of the unpaid principal balance of the
Obligation. The Adjusted Collateral Value shall be determined by multiplying
the Collateral Value (as defined in subparagraph B below) by the Margin Call
Percentage shown on Schedule I for the type of Collateral securing the
Obligation.
No advance requested by Pledgor shall be made to Pledgor if the sum of
(i) the outstanding principal balance of the Obligation plus (ii) the amount
of the advance requested, equals or exceeds the sum of the amounts determined
by multiplying the Collateral Value by the Original Advance Percentage for
each type of Collateral securing the Obligation.
B. VALUE OF COLLATERAL. The "Collateral Value" of Collateral shall be
determined at any given time as follows:
I. If stock, the Collateral Value shall be determined by multiplying (i)
the per share price of such stock at the most recent close of trading on a
trading exchange for such stock, times (ii) the number of shares of such stock
held by Bank as Collateral. In the event that stock held as Collateral is not
traded on an exchange, the Collateral Value of such stock shall be determined
by obtaining the quoted value of such stock from a reputable brokerage firm
selected by Bank. If no such quote is available, the value will be determined
by Bank in its sole discretion.
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II. If a mutual fund, the Collateral Value shall be determined by
multiplying (i) the most recent per share asset value of such mutual fund
obtained from the Wall Street Journal, times (ii) the number of shares of such
mutual fund held by Bank as Collateral. In the event that such net asset value
is not available in the Wall Street Journal, the Collateral Value shall be the
value quoted to Bank by a reputable brokerage firm selected by Bank.
III. If corporate bonds, the Collateral Value shall be determined from the
most recent closing price for such bonds obtained from the Wall Street
Journal. If such closing price is not available in the Wall Street Journal,
the Collateral Value shall be the value quoted to Bank by a reputable
brokerage firm selected by Bank.
IV. If government or agency obligations or bonds, the Collateral Value
shall be determined from the most recent closing bid price for such bonds
obtained from the Wall Street Journal. If such closing bid price is not
available in the Wall Street Journal, the Collateral Value shall be the value
quoted to Bank by a reputable brokerage firm selected by Bank.
V. If other than stock, mutual funds, corporate bonds, or government or
agency obligations or bonds, the Collateral Value shall be determined by the
Bank in its sole discretion.
C. BREACH OF COLLATERAL MAINTENANCE. Pledgor agrees that the failure to
maintain Collateral with an Adjusted Collateral Value as set forth above shall
constitute an Event of Default under this Agreement. In such event, the
Pledgor shall have two business days from the date Pledgor is notified by Bank
(in writing or orally) of such noncompliance, to either pledge additional
Collateral satisfactory to Bank, in its sole discretion, or reduce the unpaid
principal balance of the Obligations such that, in either case, the unpaid
principal balance of the Obligation is less than the sum of the amounts
determined by multiplying the Collateral Value by the Original Advance
Percentage shown on Schedule I for each type of Collateral securing the
Obligation. Any reduction in unpaid principal of the Obligation shall not
affect or reduce any future principal payments due except to the extent such
reductions are applied in accordance with the documents evidencing or securing
the Obligation. In the event Pledgor fails to comply with the terms hereof,
Bank may, without any further notice of any kind, exercise any of the
following rights and remedies, at Bank's option:
(a) The rights and remedies set out in Section 8.B. of this Agreement,
including without limitation the right to accelerate the Obligation and
liquidate the Collateral.
(b) Sell all or any part of the Collateral and apply the proceeds of such
sale to the Obligation to bring the Obligation back into compliance (
that is, to reduce the unpaid principal of the Obligation such that the
unpaid principal of the Obligation is less than the sum of the amounts
determined by multiplying the Collateral Value by the Original Advance
Percentage shown on Schedule 1 for each type of Collateral securing the
Obligation).
If an Event of Default exists hereunder and the Collateral is declining in
value or threatens to decline speedily in value, Bank shall have no obligation
to notify Pledgor of the failure to maintain Collateral with an Adjusted
Collateral Value as set forth in subparagraph A above or to provide Pledgor
with an opportunity to cure such noncompliance, and in such case Pledgor
agrees that Bank may immediately at Bank's sole option (i) declare amounts due
under the Obligation to be immediately due and payable, and/or (ii) sell all
or any part of the Collateral and apply the proceeds of such Collateral to the
Obligation.
D. SALE OR SUBSTITUTION OF COLLATERAL. If no Event of Default has
occurred under this Agreement or would result from such action, Pledgor may
(i) sell, trade, or withdraw any part of the Collateral; or (ii) substitute
new Collateral for existing Collateral, provided that, in either event, the
new Collateral shall be acceptable to Bank in its sole discretion and the
unpaid principal balance of the Obligation shall be less than the sum of the
amounts determined by multiplying the Collateral Value by the Original Advance
Percentage for each type of Collateral securing the Obligation.
7. RIGHTS AND POWERS OF BANK.
A. GENERAL. Bank, before or after default, without liability to Pledgor
may: take control of proceeds, including stock received as dividends or by
reason of stock splits; release the Collateral in its possession to any
Pledgor, temporarily or otherwise; require additional Collateral; reject as
unsatisfactory any property hereafter offered by Pledgor as Collateral; take
control of funds generated by the Collateral, such as cash dividends, interest
and proceeds, and use same to reduce any part of the Obligation and exercise
all other rights which an owner of such Collateral may exercise, except the
right to vote or dispose of the Collateral before an Event of Default; and at
any time transfer any of the Collateral or evidence thereof into its own name
or that of its nominee. Bank shall not be liable for failure to collect any
account or instruments, or for any act or omission on the part of Bank, its
officers, agents or employees, except for its or their own willful misconduct
or gross negligence. The foregoing rights and powers of Bank will be in
addition to, and not a limitation upon, any rights and powers of Bank given by
law, elsewhere in this Agreement, or otherwise.
B. CONVERTIBLE COLLATERAL. Bank may present for conversion any Collateral
which is convertible into any other instrument or investment security or a
combination thereof with cash, but Bank shall not have any duty to present for
conversion any Collateral unless it shall have received from Pledgor detailed
written instructions to that effect at a time reasonably far in advance of the
final conversion date to make such conversion possible.
8. DEFAULT.
A. EVENT OF DEFAULT. An event of default ("Event of Default") shall occur
(a) if Pledgor or any other obligor on all or part of the Obligation shall
fail to timely and properly pay or observe, keep or perform any term,
covenant, agreement or condition in this Agreement or in any other agreement
between Pledgor and Bank or between Bank and any other obligor on the
Obligation, including but not limited to any other note or instrument, loan
agreement, security agreement, deed of trust, mortgage, promissory note,
assignment or other agreement or instrument concerning the Obligation; or (b)
if Pledgor or such other obligor shall fail to timely and properly pay or
observe, keep or perform any term, covenant, agreement or condition in any
agreement between such party and any affiliate or subsidiary of NationsBank
Corporation.
B. RIGHTS AND REMEDIES. If any Event of Default shall occur, then, in
each and every such case, Bank may, without (a) presentment, demand, or
protest, (b) notice of default, dishonor, demand, non-payment, or protest, (c)
notice of intent to accelerate all or any part of the Obligation, (d) notice
of acceleration of all or any part of the Obligation, or (e) notice of any
other kind, all of which Pledgor hereby expressly waives (except for any
notice required under this Agreement, any other loan document or which may not
be waived under applicable law), at any time thereafter exercise and/or
enforce any of the following rights and remedies, at Bank's option:
I. ACCELERATION. The Obligation shall, at Bank's option, become
immediately due and payable, and the obligation, if any, of Bank to permit
further borrowings under the Obligation shall at Bank's option immediately
cease and terminate.
II. LIQUIDATION OF COLLATERAL. Sell, or instruct any Agent or Broker
to sell, all or any part of the Collateral in a public or private sale, direct
any Agent or Broker to liquidate all or any part of any Account and deliver
all proceeds thereof to Bank, and apply all proceeds to the payment of any or
all of the Obligation in such order and manner as Bank shall, in its
discretion, choose.
III. UNIFORM COMMERCIAL CODE. All of the rights, powers and remedies
of a secured creditor under the Uniform Commercial Code ("UCC") as adopted in
the jurisdiction to which Bank is subject under this Agreement.
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IV. RIGHT OF SET OFF. Without notice or demand to Pledgor, set off
and apply against any and all of the Obligation any and all deposits (general
or special, time or demand, provisional or final) and any other indebtedness,
at any time held or owing by Bank or by any of Bank's affiliates or
correspondents to or for the credit of the account of Pledgor or any guarantor
or indorser of Pledgor's Obligation.
Pledgor specifically understands and agrees that any sale by Bank of all or
part of the Collateral pursuant to the terms of this Agreement may be effected
by Bank at times and in manners which could result in the proceeds of such
sale as being significantly and materially less than might have been received
if such sale had occurred at different times or in different manners, and
Pledgor hereby releases Bank and its officers and representatives from and
against any and all obligations and liabilities arising out of or related to
the timing or manner of any such sale.
If, in the opinion of Bank, there is any question that a public sale or
distribution of any Collateral will violate any state or federal securities
law, Bank may offer and sell such Collateral in a transaction exempt from
registration under federal securities law, and any such sale made in good
faith by Bank shall be deemed "commercially reasonable."
9. GENERAL.
A. PARTIES BOUND. Bank's rights hereunder shall inure to the benefit of
its successors and assigns, and in the event of any assignment or transfer of
any of the Obligation or the Collateral, Bank thereafter shall be fully
discharged from any responsibility with respect to the Collateral so assigned
or transferred, but Bank shall retain all rights and powers hereby given with
respect to any of the Obligation or the Collateral not so assigned or
transferred. All representations, warranties and agreements of Pledgor, if
more than one, are joint and several and all shall be binding upon the
personal representatives, heirs, successors and assigns of Pledgor.
B. WAIVER. No delay of Bank in exercising any power or right shall
operate as a waiver thereof; nor shall any single or partial exercise of any
power or right preclude other or further exercise thereof or the exercise of
any other power or right. No waiver by Bank of any right hereunder or of any
default by Pledgor shall be binding upon Bank unless in writing, and no
failure by Bank to exercise any power or right hereunder or waiver of any
default by Pledgor shall operate as a waiver of any other or further exercise
of such right or power or of any further default. Each right, power and remedy
of Bank as provided for herein or in any of the loan documents related to the
Obligation, or which shall now or hereafter exist at law or in equity or by
statute or otherwise, shall be cumulative and concurrent and shall be in
addition to every other such right, power or remedy. The exercise or beginning
of the exercise by Bank of any one or more of such rights, powers or remedies
shall not preclude the simultaneous or later exercise by Bank of any or all
other such rights, powers or remedies.
C. AGREEMENT CONTINUING. This Agreement shall constitute a continuing
agreement. If the Obligation consists of All Debt, this Agreement shall apply
to all future as well as existing transactions, whether or not of the
character contemplated at the date of this Agreement, and if all transactions
between Bank and Pledgor shall be closed at any time, shall be equally
applicable to any new transactions thereafter. Provisions of this Agreement,
unless by their terms exclusive, shall be in addition to other agreements
between the parties. Time is of the essence of this Agreement.
D. DEFINITIONS. Unless the context indicates otherwise, definitions in
the UCC apply to words and phrases in this Agreement; if UCC definitions
conflict, Article 8 and/or 9 definitions apply.
E. NOTICE. Notice shall be deemed reasonable if mailed postage prepaid at
least 5 days before the related action (or if the UCC elsewhere specifies a
longer period, such longer period) to the address of Pledgor given above. Each
notice, request and demand shall be deemed given or made, if sent by mail,
upon the earlier of the date of receipt or five (5) days after deposit in the
U.S. Mail, first class postage prepaid, or if sent by any other means, upon
delivery.
F. MODIFICATIONS. No provision hereof shall be modified or limited except
by a written agreement expressly referring hereto and to the provisions so
modified or limited and signed by Pledgor and Bank. The provisions of this
Agreement shall not be modified or limited by course of conduct or usage of
trade.
G. PARTIAL INVALIDITY. The unenforceability or invalidity of any
provision of this Agreement shall not affect the enforceability or validity of
any other provision herein, and the invalidity or unenforceability of any
provision of any loan document related to the Obligation to any person or
circumstance shall not affect the enforceability or validity of such provision
as it may apply to other persons or circumstances.
H. APPLICABLE LAW AND VENUE. This Agreement has been delivered in the
State of North Carolina and shall be construed in accordance with the laws of
that State. It is performable by Pledgor in the county or city of Bank's
address set out above and Pledgor expressly waives any objection as to venue
in any such location. Wherever possible each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Agreement.
I. FINANCING STATEMENT. To the extent permitted by applicable law, a
carbon, photographic or other reproduction of this Agreement or any financing
statement covering the Collateral shall be sufficient as a financing
statement.
J. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF
J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION. ANY PARTY TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY
BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL
ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY
COURT HAVING JURISDICTION OVER SUCH ACTION.
I. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF ANY
BORROWER'S DOMICILE, OR IF THERE IS REAL OR PERSONAL PROPERTY COLLATERAL, IN
THE COUNTY WHERE SUCH REAL OR PERSONAL PROPERTY IS LOCATED AT THE TIME OF THE
EXECUTION OF THIS INSTRUMENT, AGREEMENT OR DOCUMENT AND ADMINISTERED BY
J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90
DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A
SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR
UP TO AN ADDITIONAL 60 DAYS.
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II. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL BE
DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT
OR DOCUMENT; OR (II) BE A WAIVER BY BANK OF THE PROTECTION AFFORDED TO IT BY
12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT
THE RIGHT OF BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES
SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE
APPOINTMENT OF A RECEIVER. BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE
UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE,
DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO
THIS INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP
REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR
PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF
ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS
OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
K. CONTROLLING DOCUMENT. To the extent that this Agreement conflicts with
or is in any way incompatible with any other loan document concerning the
Obligation, any promissory note shall control over any other document, and if
such promissory note does not address an issue, then each other loan document
shall control to the extent that it deals most specifically with an issue.
L. EXECUTION UNDER SEAL. This Agreement is being executed under seal by
Pledgor(s).
M. NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND ANY OTHER
DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed under seal by their duly authorized representatives as of the date
first above written.
BANK/SECURED PARTY:
NATIONSBANK, N.A.
By: /s/ Xxxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Senior Vice President
CORPORATE OR PARTNERSHIP PLEDGOR:
Kanders Florida Holdings, Inc.
By: /s/Xxxxxx X. Xxxxxxx (Seal)
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
-----------------------------------
Attest (If Applicable)
[Corporate Seal]
-5-
SCHEDULE I
TO
PLEDGE AGREEMENT
ORIGINAL ADVANCE MARGIN CALL
COLLATERAL TYPE PERCENTAGE PERCENTAGE
--------------- ---------- ----------
STOCKS/BONDS 70% 75%
Listed Stocks (NYSE or ASE)1
(non-purpose loan)
OTC Margin Stocks 70% 75%
(non-purpose loan)
OTC Non-Margin Stocks1 50% 55%
U.S. Government Obligations 90% 95%
U.S. Agency Bonds 80% 85%
State/Municipal Bonds 80% 85%
(A or higher)
Corporate Bonds2 80% 85%
(BAA or higher)
Cash Surrender Value of Life Insurance 95% 95%
NationsBank Deposit Account 100% 100%
Other Federally Insured Deposit Accounts 90% 90%
Mutual Funds (quoted daily in WSJ or Xxxxxx'x)
Money Market 95% 95%
U.S. Government Obligations 90% 95%
Corporate/Municipal Bonds 80% 85%
Equities 70% 75%
NationsBanc Investments, Inc. Account #PSA 041319 40% 50%
1Loans for the purpose of purchasing or carrying margin stocks are limited by
Regulation U to a 50% Original Advance Percentage.
2Does not apply to convertible bonds which are convertible into stocks which
are limited to the applicable percentages for the stock to which they may
convert.
