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EXHIBIT 10.5
THIS AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS OF THE INTERCREDITOR AND
COLLATERAL AND SHARING AGREEMENT DATED FEBRUARY 29, 2000 REFERRED TO HEREIN AS
THE COLLATERAL SHARING AGREEMENT, AS THE SAME MAY BE AMENDED, MODIFIED OR
OTHERWISE SUPPLEMENTED FROM TIME TO TIME, BY AND AMONG ALTIVA FINANCIAL
CORPORATION, VALUE PARTNERS, LTD., AS ORIGINAL PURCHASER OF CERTAIN CONVERTIBLE
NOTES ISSUED BY ALTIVA, AND UNITED STATES TRUST COMPANY OF NEW YORK, AS AGENT
FOR THE HOLDERS OF SUCH CONVERTIBLE NOTES AND THE HOLDERS OF THE NOTES ISSUED
PURSUANT TO THE EXCHANGE AGREEMENT, AS DEFINED HEREIN.
PLEDGE AND SECURITY AGREEMENT
This PLEDGE and SECURITY AGREEMENT, dated as of March 17, 2000 (as
amended, supplemented or otherwise modified from time to time, this "Pledge
Agreement"), is entered into by ALTIVA FINANCIAL CORPORATION, a Delaware
corporation (the "Borrower"), having its principal place of business at 0000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 and in favor of United
States Trust Company of New York, as Collateral Agent, and the Noteholders, as
defined herein. All Exhibits attached hereto are by this reference incorporated
herein.
W I T N E S S E T H
WHEREAS, on November 26, 1996 and in October 1997, the Borrower
collectively issued $80,000,000.00 principal amount of 12 1/2% Senior
Subordinated Notes Due 2001 to certain holders thereof, which notes were
exchanged for $45,100,000.00 principal amount of 12 1/2% Subordinated Notes due
2001 (the "Existing Subordinated Notes") and 42,500 shares of Borrower's Series
A Preferred Stock, par value $.01; and
WHEREAS, the Borrower has entered into an Exchange Agreement by and
between the Borrower and the Trustee on behalf of certain holders of 96.8% of
the Existing Subordinated Notes, who have exchanged their Existing Subordinated
notes pursuant to the Exchange Agreement. Only holders of an Existing
Subordinated Note who are a QIB (as defined herein) and who exchange an
Existing Subordinated Note for a Note (as hereinafter defined) are
beneficiaries of this Agreement; and
WHEREAS, because the Collateral issued pursuant to the Securitizations
may only be pledged to a QIB, in order to induce the holders of the Exchange
Notes to enter into the Exchange Agreement, (a) the Borrower and the holders of
the Replacement Non-QIB Notes have entered into, as of the date hereof, that
certain Stock Pledge Agreement, pursuant to which a first lien and security
interest has been granted in the Pledged Shares; and (b) the Borrower and the
holders of the Notes (all QIBs) have entered into this Pledge Agreement,
pursuant to which (i) a
PLEDGE AND SECURITY AGREEMENT PAGE 1
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first lien and security interest has been granted on all Collateral, other than
the Pledged Shares, (ii) a subordinated lien has been granted on the Pledged
Shares, and (iii) a first priority lien in the Textron Collateral, as defined
herein, pledged by the Borrower to Textron Financial Corporation ("Textron"),
pursuant to the Textron Documents, as defined herein, shall arise if and when
the security interest of Textron therein is extinguished; and
WHEREAS, on the date hereof, the Borrower and Value Partners, Ltd.
have entered into that certain Amended and Restated Secured Convertible Senior
Note Purchase Agreement (the "Convertible Note Agreement") (which Convertible
Note Agreement amends and restates that certain Note Purchase Agreement dated
August 31, 1999, as amended and/or restated December 13, 1999, December 31,
1999, February 2, 2000 and February 11, 2000) pursuant to which Value Partners,
Ltd. has been issued $14,000,000.00 in principal amount of 12% Secured Senior
Convertible Senior Notes due 2006 (the "Convertible Notes"); and
WHEREAS, the Borrower has granted (or affirmed and renewed prior
grants) to Value Partners as agent for the account of the lenders under the
Convertible Note Agreement a pari passu security interest in the Collateral
pledged to the holders of the Notes pursuant to this Agreement (including the
Textron Collateral); and
WHEREAS, the Borrower, the Value Partners, Ltd., and the Collateral
Agent, as agent for the holders of the Convertible Notes, the holders of the
Notes and the holders of the Replacement Non-QIB Notes have entered into the
Collateral Sharing Agreement (as defined below) to set forth the interests of
the respective parties thereto in the Collateral (as defined below); and
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Borrower, and the holders of the Notes hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used herein, the following terms shall have
the following meanings:
"Accounts" shall have such meaning as such term is defined in Article
9 of the UCC, and shall include, without limitation, each of the following,
whether now owned or hereafter acquired by the Borrower: (a) all accounts
receivable, contract rights, book debts, notes, drafts and other obligations or
indebtedness owing the Borrower (including, without limitation, any such
obligation that might be characterized as an account, contract right, or
general intangible under the UCC in effect in any jurisdiction) and all monies
due to or to become due to the Borrower under all contracts for the sale,
lease, or exchange of goods or other property (whether or not earned by
performance on the part of the Borrower), in each case whether now in existence
or hereafter arising or acquired, including, without limitation, the right to
receive the proceeds thereof; (b) all rights of the Borrower to receive any
payment of money or other form of
PLEDGE AND SECURITY AGREEMENT PAGE 2
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consideration; (c) all security pledged, assigned or granted to or held by the
Borrower to secure any of the foregoing; and (d) all guaranties of, or
indemnifications with respect to, any of the foregoing.
"Additional Collateral" means property acceptable to the registered
holders of not less than a majority in aggregate principal amount of the Notes
and the Exchange Notes, considered as a single class, then outstanding in
writing, in their sole and absolute discretion.
"Borrower" shall have the meaning specified in the introductory
paragraph hereof.
"Business Day" means any day other than Saturday, Sunday or other day
on which banking institutions in Atlanta, Georgia of New York, New York are
authorized or required by law or executive order to be closed.
"Certificates" means any security, chattel paper, certificated
security or instrument, as from time to time amended, modified or supplemented,
including the following: any Residual Interest Instrument, any Interest Only
Instrument, the Senior Trust Certificate, the Pledged Shares and a Certificated
Security as defined in Section 8-102 of the UCC.
"Clearing Corporation" shall have the meaning given such term in
Section 8-102(a)(5) of the UCC.
"Collateral" shall have the meaning specified in Section 2.1.
"Collateral Agent" means United States Trust Company of New York in
its capacity as agent of the Noteholders for the purposes set forth in Section
2.2 hereof and as set forth in the Collateral Sharing Agreement, and any
successors or assigns thereof under the Collateral Agreement.
"Collateral Sharing Agreement" shall mean that certain Intercreditor
and Collateral Sharing Agreement, in the form attached hereto as Exhibit "A"
and by this reference incorporated herein.
"Convertible Notes" has the meaning set forth in the fifth recital
paragraph hereof.
"Convertible Note Pledge Agreement" shall mean the Amended and
Restated Pledge and Security Agreement between the Borrower, Value Partners,
Ltd., as initial holder of the Convertible Notes, and any subsequent registered
owners of the Convertible Notes, together with any amendments, modifications,
supplements or restatements hereof.
"Default" has the meaning set forth in Section 1.1 of the Indenture.
"Delivery" means a delivery of Collateral to the Collateral Agent in
accordance with this Pledge Agreement, including Section 2.2 hereof.
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"Event of Default" has the meaning set forth in Section 5.1 of the
Indenture.
"Exchange Agreement" means the Exchange Agreement, dated as of March
17, 2000, by and among the Borrower and the holders of Existing Subordinated
Notes who elect to enter into the Exchange Agreement, together with any
amendments, supplements, modifications and restatements thereof.
"Exchange Pledge Agreements" means this Pledge Agreement and that
certain Stock Pledge Agreement dated as of the date hereof pursuant to which
the holders of the Replacement Non-QIB Notes are granted a first lien in the
Pledged Shares, each as governed by the Collateral Sharing Agreement.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, consistently applied.
"Governmental Authority" means any nation, government, state, or any
political subdivision thereof, or any court, stock exchange, entity or agency
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Grantor Trust Right" means all rights of the Borrower, including the
right to payments to the Borrower, in the Sale Agreement executed in relation
to Mego Mortgage Home Loan Trust 1996-3, including, without limitation, the
rights set forth in Section 4.05(b)(xvii) of such Sale Agreement.
"Indebtedness" has the meaning set forth in Section 1.1 of the
Indenture.
"Indenture" means the Indenture, dated as of February 29, 0000,
xxxxxxx xxx Xxxxxxxx xxx Xxxxxx Xxxxxx Trust Company of New York, as Trustee,
together with any amendments, modifications, supplements or restatements
thereof.
"Interest Only Instrument(s)" shall, as to that particular
Certificate, have the meaning ascribed to the term "Class S Certificate",
"Class IS Certificate, "Class IIS Certificate" or a similar phrase describing
an interest only security in the respective Sale Agreement arising from the
Securitization pursuant to which such security is issued, which security
represents the undivided interest of the Borrower in all or a portion of the
interest payments due on certain loans securitized in that Securitization.
"Loan Documents" means, collectively, the Exchange Agreement, the
Notes, this Pledge Agreement, the Collateral Sharing Agreement, the
Registration Rights Agreements and any other documents evidencing or relating
to the Notes or the Collateral, the Additional Collateral or any such security
which may now or hereafter be given as further security for or in connection
with the Notes.
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"Majority Holders" means the registered holder of not less than fifty
percent (50%) in aggregate principal amount of the Notes then outstanding
(except to the extent that a beneficial owner is treated as a registered holder
pursuant to Section 14.16 hereof).
"Majority QIB Holders" means the registered holders of not less than
fifty percent (50%) in aggregate principal amount of the Notes and Convertible
Notes, considered as a single class, then outstanding (except to the extent
that beneficial owners are treated as registered holders pursuant to Section
14.16 hereof).
"Noteholder" shall mean the holders of the Notes and any subsequent
registered holder of the Notes sold, assigned or otherwise transferred in
accordance with the Indenture.
"Notes" shall mean the notes issued pursuant to the Exchange Agreement
and the Indenture to those holders of Existing Subordinated Notes who are QIBs
and who exchanged their Existing Subordinated Notes pursuant to the Exchange
Agreement, together with any amendments, modifications, supplements or
restatements thereof.
"Outstanding" or "outstanding" has the meaning to it given in the
Indenture.
"Person" means any individual, partnership, corporation, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, or governmental entity (or any department, agency
or political subdivision thereof), or any other entity.
"Pledge Agreement" shall have the meaning specified in the
introductory paragraph hereof, as amended, modified, extended, renewed and
increased from time to time.
"Pledged Shares" shall mean any and all shares of stock or other
evidence of equity or ownership interest of the Borrower in The Money Centre,
Inc. (either as record owner or beneficially), including but not limited to
those shares set forth on Exhibit "D" attached hereto and by this reference
incorporated herein, including any such interests which may be acquired after
the date hereof and the certificates or stock representing all such items. This
shall include all of the issued and outstanding shares of capital stock of The
Money Centre, Inc. in existence until expiration of the Pledge Agreement.
"QIBs" shall mean a Qualified Institutional Buyer under Rule 144A of
the Securities Act.
"Quarter" means any fiscal quarter ended on the last day of the months
of February, May, August and November.
"Registration Rights Agreement" shall have the meaning set forth in
the Exchange Agreement.
"Replacement Non-QIB Notes" means those notes issued pursuant to the
Exchange Agreement and the Indenture to those holders of Existing Subordinated
Notes who are not QIBs and who exchanged their existing Subordinated Notes
pursuant to the Exchange Agreement, together with any amendments,
modifications, supplements or restatements thereof.
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"Replacement Non-QIB Pledge Agreement" means the Stock Pledge
Agreement between the Borrower and the Collateral Agent in favor of the Holders
of the Replacement Non-QIB Notes, together with any amendments, modifications,
supplements or reinstatements thereof.
"Residual Interest Instrument(s)" shall, as to that particular
Certificate, have the meaning ascribed to the term "Class R Certificate",
"Residual Interest Instrument", "Residual Certificate", "Residual Instrument"
or a similar phrase describing a certificated residual interest in the Sale
Agreement arising from the Securitization pursuant to which such security is
issued, which security represents the undivided residual interest of the
holder, including in all or a portion of the interest and principal payments
due on certain loans securitized in that Securitization. Neither the Grantor
Trust Right nor the Senior Trust Certificate are Residual Interest Instruments.
"Sale Agreement" means the respective Pooling and Servicing
Agreement, Sale and Servicing Agreement or similar agreement, together with
related agreements, including trust agreements and indentures, which create and
grant rights in Certificates and the Grantor Trust Right, entered into or
otherwise issued in relation to a particular Securitization.
"Securities Act" means the Securities Act of 1933, as now in effect
and as hereafter amended from time to time.
"Securitization" means the respective securitization as set forth on
Exhibit "E" hereto and by this reference incorporated herein.
"Senior Trust Certificate" means that certain 125 Home Loan Owner
Trust 1998-1, Senior Trust Certificate.
"Textron" shall have the meaning specified in the fourth recital
paragraph hereof.
"Textron Collateral" means those Certificates and all other rights
presently pledged to Textron as described in Exhibit "F" attached hereto and by
this reference incorporated herein.
"Textron Documents" means that certain Credit Agreement dated as of
October 27, 1997 by and between Textron, as agent, and the Borrower, that
certain note as of the same date issued to the lenders under such Credit
Agreement and all related documents, including that certain Security Agreement
dated as of October 27, 1997, financing statements and transfer powers, all as
amended, supplemented or otherwise modified.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York; provided, that if by mandatory provisions of law, the perfection or
effect of perfection or non-perfection of the security interest in any
Collateral to which this Pledge Agreement relates is governed by the Uniform
Commercial Code as in effect on or after the date hereof in any other
jurisdiction, UCC means the Uniform Commercial Code as in effect in such other
jurisdiction for
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purposes of the provisions hereof relating to such perfection or the effect of
perfection or non-perfection.
"Uncertificated Security" shall have the meaning given such term in
Section 8-102(a)(18) of the UCC.
ARTICLE II
PLEDGE AND DELIVERY OF COLLATERAL
MANAGEMENT OF COLLATERAL
2.1 Security. Subject to the rights of the holders of the
Convertible Notes set forth in the Convertible Note Pledge Agreement and to the
rights of the holders of the Replacement Non-QIB Noteholders in the Pledged
Shares set forth in the Replacement Non-QIB Note Pledge Agreement, all as
governed by the Collateral Sharing Agreement, as security for the payment
(whether at the stated maturity, by acceleration or otherwise) of all
obligations, liabilities and indebtedness of the Borrower to the Noteholders,
whether now or hereafter owing or existing, arising under or relating to this
Pledge Agreement, the Notes and the other Loan Documents, and for the payment,
performance and discharge of all other obligations or undertakings now or
hereafter made for the benefit of the Noteholders under this Pledge Agreement,
the Notes, the other Loan Documents or under any other agreement, promissory
note or undertaking now existing or hereafter entered into by the Borrower with
or to the Noteholders pursuant to the terms hereof, including any guaranty or
surety obligations of the Borrower owed to the Noteholders arising under or
relating to the Pledge Agreement, the Notes and the other Loan Documents, the
Borrower hereby pledges, assigns, transfers and delivers to the Noteholders a
continuing first priority lien and security interest (except as noted below or,
in the case of Additional Collateral, as otherwise agreed by the Majority QIB
Holders) in all of the Borrower's rights, title and interest in, to and under:
(a) the Certificates representing the Collateral; (b) the Grantor Trust Right,
subject to the Securitizations; (c) the Pledged Shares and Certificates; (d)
any other property of the Borrower held by the Collateral Agent, the
Replacement Non-QIB Noteholders or Value Partners, Ltd. on behalf of the
Noteholders arising under or relating to the Loan Documents, from time to time,
or securing any other obligation of the Borrower to the Noteholders or any of
their respective affiliates; (e) Additional Collateral; and (f) all proceeds,
payments, income, products and profits derived from or related to the
above-described property (all of the foregoing are collectively referred to
herein as the "Collateral"). The agreements and related documents evidencing
the Grantor Trust Right and the Certificates, as well as related documents
comprising such Collateral are set forth on Exhibit "C". The Pledged Shares are
described in Exhibit "D" and the Residual Interest Instruments, Senior Trust
Certificate and Interest Only Instruments described on Exhibit "C" and Exhibit
"F" are Certificates, all of which are Collateral.
The Collateral shall include all rights of the Borrower related to the
Collateral, the Additional Collateral and any other Collateral pledged pursuant
to the terms hereof, including the following:
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(a) Cash Proceeds. All rights to receive the payment of money in
respect of the Collateral, including the Certificates and Grantor Trust Right.
(b) Chattel Paper, Instruments, etc. All chattel paper,
securities, uncertificated securities, instruments, non-negotiable instruments,
negotiable instruments, investment property, general intangibles, documents (as
those terms are defined in the UCC), Accounts and Certificates evidencing or
with respect to any of the Collateral.
(c) Deposit Accounts. All rights to payments under the
Collateral, including payments due to the holders of Certificates and the
Grantor Trust Right from the accounts of the trustee (or other Person) into
which funds to be payable under Certificates and the Grantor Trust Right are
deposited or held under a Securitization, and all money, cash and cash
equivalents of the Borrower, in each case arising from payments with respect to
any of the Collateral, including the Certificates and the Grantor Trust Right
or other Collateral.
(d) Collateral. All collateral granted by third party obligors
to, or held by, the Borrower with respect to the Collateral, including the
Certificates and the Grantor Trust Right.
(e) Books and Records. All books and records, including books of
account and ledgers of every kind and nature, all electronically recorded data
(including all computer programs, disks, tapes, electronic data processing
media and software used in connection with maintaining the Borrower's books and
records), all files and correspondence and all receptacles and containers for
the foregoing, all with respect to the Collateral, including Certificates and
the Grantor Trust Right.
(f) Cash. All cash and other property held under this Pledge
Agreement.
(g) Miscellaneous. All right, title, interest in, to and under
the clean-up call provisions, including as contained in Section 9.01 of each of
the Sale Agreement with respect to the subject Securitization, and all
proceeds, payments and income derived from or relating thereto.
(h) Proceeds and Products. All proceeds and products of the
Collateral, to the extent not included in the foregoing, including;
(i) all distributions arising from and pursuant to the
designated trust agreements or other Securitization agreements
(including Sales Agreements) with respect to the Collateral,
(ii) all other proceeds of insurance and guarantees, if
any, with respect to the Collateral provided by MBIA Insurance
Corporation, the Federal Housing Administration or any other Person
providing coverage for loss or diminution in value of the Collateral;
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(iii) all other proceeds from the liquidation or other
recovery (if any) of loans relating to the Collateral;
(iv) all "proceeds", as that term is defined in Section
9-306 of the UCC;
(v) all cash, securities, dividends, increases,
distributions and profits received therefrom or in connection
therewith, including distributions or payments in partial or complete
liquidation or redemption, or as a result of reclassifications,
readjustments, reorganizations or changes in the capital structure of
the issuer thereof and any other property at any time and from time to
time received, receivable or otherwise distributed or delivered to the
Noteholders or the Collateral Agent on behalf of the Noteholders, and
all rights and privileges pertaining thereto;
(vi) all additional shares of stock of any issuer of any
Certificate from time to time acquired by the Borrower in any manner,
and all dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares;
(vii) all securities hereafter delivered to Collateral
Agent in substitution for, or in addition to, any of the foregoing,
all certificates representing or evidencing such securities, and all
cash, securities, instruments, documents, dividends, increases,
distributions and profits received therefrom, and any other property
at any time and from time to time received by, receivable by or
otherwise distributed or delivered to the Collateral Agent in respect
of or in exchange for any or all of the property described;
(viii) all subscriptions, warrants, options and any other
rights issued now or hereafter by the issuer of the Certificates or
any other person whatsoever upon or in connection with the
Certificates and any part of the Collateral; and
(ix) all products and proceeds of the foregoing and all
general intangibles and contract rights related thereto, including
without limitation, all revenues, distributions, dividends, property,
registration rights, contract rights and other rights and interests
that Borrower is, or may hereafter become, entitled to receive on
account of any collateral described above.
Borrower shall forthwith deliver to the Collateral Agent on behalf of the
Noteholders all subscriptions, warrants, options and all such other rights, and
upon delivery to the Collateral Agent, the Collateral Agent shall hold, on
behalf of the Noteholders, such subscriptions, warrants, options and other
rights as Collateral pledged to secure the obligations of Borrower, provided,
however, that if the registered holders of not less than fifty percent (50%) in
aggregate principal amount of the Notes, Convertible Notes and Replacement
Non-QIB Notes, considered as a single class, then outstanding, to whom such
collateral is pledged determine, in their sole discretion, that the value of
any such subscriptions, warrants, options or other rights shall terminate,
expire or be materially reduced in value by holding the same as Collateral,
such
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Persons shall have the right (but not the obligation), in their sole
discretion, to sell or exercise the same; and if exercised, then the monies
disbursed by the Collateral Agent in connection therewith shall become part of
the Collateral and all of the stock, securities, evidences of indebtedness and
other items so acquired shall become part of the Collateral;
The Borrower will pay all filing, recording, search and other expenses
reasonably incurred by the Collateral Agent or the Noteholders with respect to
perfection of the Noteholders' security interest under this Pledge Agreement
and the confirmation of the priority of the Noteholders' security interest in
the Collateral.
2.2 Delivery of Collateral.
(a) Delivery of Collateral to the Collateral Agent under this Pledge
Agreement shall be made in the following manner: (i) in the case of cash,
including proceeds on the Collateral and cash which constitutes Additional
Collateral, by wire transfer or other method acceptable to the Collateral Agent
of immediately available funds; (ii) in the case of a Certificate (or similar
property perfected by possession), by the physical delivery thereof evidencing
such Collateral to the Collateral Agent or its designee, and either, at the
election of the Majority QIB Holders (A) registered in the name of a Noteholder
or holder of Convertible Notes as designated by the Majority QIB Holders (which
shall be Value Partners, Ltd. unless otherwise consented to by Value Partners,
Ltd.), and (B) in all other instances, in suitable form for delivery and
transfer, accompanied by duly executed instruments of transfer or assignment in
blank or such other documentation as may be necessary to effect transfer to the
Noteholders and holder of Convertible Notes, whereupon, at the election of the
Majority QIB Holders, the Collateral Agent may take such steps as it deems
necessary to effect the recordation or re-registration of such Collateral in
the name designated by the Majority QIB Holders (which shall be in the name of
Value Partners, Ltd. so long as it is a Noteholder or holder of Convertible
Notes unless otherwise consented to by Value Partners, Ltd.) (iii) with respect
to an Uncertificated Security by registration in the name of Value Partners,
Ltd. on behalf of the Noteholders, whenever possible, and in all other
instances (other than an Uncertificated Security credited on the books of a
Clearing Corporation), the Borrower shall cause the issuer of such
Uncertificated Security to duly authorize and execute, and deliver to the
Noteholders, an agreement for the benefit of the Noteholders substantially in
the form of Exhibit "G" hereto (appropriately completed to the satisfaction of
the Collateral Agent and with such modifications, if any, as shall be
satisfactory to the Collateral Agent) pursuant to which such issuer agrees to
comply with any and all instructions originated by the Collateral Agent for the
account of the Noteholders without further consent by the registered owner and
not to comply with instructions regarding such Uncertificated Security
originated by any other Person other than a court of competent jurisdiction
(Exhibit "G" shall be executed as to the Grantor Trust Right, even if not an
Uncertificated Security): (iv) with respect to a certificated security (as
defined in the UCC) or Uncertificated Security credited on the books of a
Clearing Corporation (including a Federal Reserve Bank, Participants Trust
Company or The Depository Trust Company), the Borrower shall promptly notify
the Collateral Agent thereof and shall promptly take all actions (x) required
(i) to comply with the applicable rules of such Clearing Corporation and (ii)
to perfect the security interest of the Noteholders under applicable law
(including, in any event, under Sections
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9-115 (4)(a) and (b), 9-115 (1)(e) and 8-106(d) of the UCC) and (y) as the
Collateral Agent deems necessary or desirable to effect the foregoing; and (v)
in the case of any other Collateral (such Collateral to be subject to the
written approval of the Collateral Agent, which approval may be withheld in the
sole discretion of the Collateral Agent), in such manner as the Collateral
Agent shall agree to in writing. Except as otherwise provided herein or, in the
case of Additional Collateral, as otherwise agreed by the Collateral Agent in
accepting the same, all Collateral shall be delivered free and clear of all
liens and security interests other than the lien and security interest created
in favor of the Noteholders under this Pledge Agreement and as provided in the
Convertible Note Pledge Agreement, the Replacement Non-QIB Pledge Agreement and
the Collateral Sharing Agreement.
(b) In addition to the actions required to be taken pursuant to
preceding Section 2.2(a), the Borrower shall take the following additional
actions with respect to the Collateral:
(i) with respect to all Collateral of such Borrower
whereby or with respect to which the Collateral Agent for the account of the
Noteholders may obtain "control" thereof within the meaning of Section 8-106 of
the UCC (or under any other provision of the UCC as the same may be amended or
supplemented from time to time, or under the laws of any relevant State other
than the State of Maryland), the Borrower shall take all actions as may be
requested from time to time by the Collateral Agent so that "control" of such
Collateral is obtained and at all times held by the Collateral Agent (other
than the Certificates registered in the name of Value Partners, Ltd., in which
case control need only be obtained by Value Partners, Ltd.); and
(ii) Borrower shall from time to time cause appropriate
financing statements (on Form UCC-1 or other appropriate form) under the
Uniform Commercial Code as in effect in the various relevant states, covering
all Collateral hereunder (with the form of such financing statements to be
satisfactory to the Noteholders), to be filed in the relevant filing offices so
that at all times the Noteholders have a security interest in all Collateral
which is perfected by the filing of such financing statements (in each case to
the maximum extent perfection by filing may be obtained under the laws of the
relevant states, including, without limitation, Section 9-115(4)(b) of the
UCC).
(c) Pursuant to the Collateral Sharing Agreement, the Collateral
Agent is appointed agent of the Noteholders, for the purpose of retaining
physical possession of the Collateral which may be perfected by possession and
as to all other actions permitted in the Collateral Sharing Agreement,
including enforcement of rights and remedies of the Noteholders.
2.3 Reserved.
2.4 Notice, Registration and Consents.
On or prior to the date a Certificate, the Grantor Trust Right or any
other property becomes or is to become Collateral, the Borrower shall:
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(a) obtain all requisite consents necessary to provide to the
Noteholders the rights granted in this Pledge Agreement, including the grant
and perfection of the Noteholders of a security interest in such Collateral
and, in the case of registered or certificated Collateral, to (at the sole
discretion of the Majority QIB Holders) deliver the Certificates with duly
endorsed powers in blank or deliver the Certificates or, in the discretion of
the Majority QIB Holders, cause the registration thereof (on the books of the
Securitization trustee, certificate transfer agent and registrar or similar
Person) in the name of Value Partners, Ltd. (or such other person as consented
to by Value Partners, Ltd. and if Value Partners Ltd. is no longer a Noteholder
or Convertible Noteholder by the Majority QIB Holders) on behalf of the
Noteholders as provided in Section 2.2(a); and
(b) provide all requisite notices necessary to provide to the
Noteholders the rights granted in this Pledge Agreement, including the grant
and perfection of the Noteholders' security interest in such Collateral,
including the notice set forth in Exhibit "G" attached hereto and by this
reference incorporated herein.
Notices and consents shall include notices to and consents of the
indenture trustee and the certificate transfer agent and registrar of any
Securitization.
2.5 Reserved.
2.6 Shared Collateral and Textron Collateral.
(a) Pursuant to the Collateral Sharing Agreement; (i) the lien
granted the holders of the Notes by the Borrower under this Pledge Agreements
is pari passu with the lien in the Collateral granted Value Partners or any
successor thereto on behalf of the holders of Convertible Notes; which pari
passu lien shall constitute a first lien and security interest on all
Collateral except the Pledged Shares and a subordinated lien on the Pledged
Shares subject only to the first lien thereon granted to the holders of the
Replacement Non-QIB Notes in the Exchange Pledge Agreements, as set forth
below; and (ii) the holders of the Replacement Non-QIB Notes are granted a
first lien and security interest in the Pledged Shares, with any recovery of
proceeds from such Pledged Shares not to exceed such sums as necessary to
permit a pro-rata recovery of value equal to that of the holders of the
Convertible Notes and the holders of the Notes.
(b) Textron Collateral. On the date Textron's security interest
in the Textron Collateral is terminated in accordance with the terms of the
Textron Documents, the Textron Collateral shall be deemed Collateral as if it
were set forth in Section 2.1 and included on Exhibit "C". Other than the
prompt delivery of such Textron Collateral (and delivery of appropriate
endorsements in blank and all certificates and documents required by the
Securitization Trustee for transfer) to Value Partners, Ltd. as agent for the
Convertible Noteholders for purposes of registration in the name of Value
Partners, Ltd. and delivery to the Collateral Agent, the Borrower represents
and warrants that no further action on the part of the Borrower is required to
obtain an effective perfected pledge of the Textron Collateral. Commencing at
such time the Noteholders shall have a first priority lien and security
interest therein pursuant to this Pledge
PLEDGE AND SECURITY AGREEMENT PAGE 12
13
Agreement (subject to the pari passu lien of the holders of the Convertible
Notes) and the Borrower shall within ten (10) Business Days after the
expiration of Textron's security interest deliver to the Collateral Agent and
register in the name of Value Partners, Ltd. (including in compliance with
Section 2.2) those items on Exhibit "F" hereto, together with any other such
documents necessary to perfect the Noteholders' first priority lien and
security interest therein.
2.7 Reserved
2.8 Held in Trust. Any sums collected or received and any
property recovered or possessed by the Borrower in connection with the
Collateral, which, under the terms of this Pledge Agreement, should have been
delivered to the Collateral Agent, shall be received and held by the Borrower
in trust for and on the Noteholders' behalf, shall be segregated from the other
assets and funds of the Borrower, and shall be delivered to the Collateral
Agent for the benefit of the Noteholders.
ARTICLE III
FURTHER ASSURANCES
Subject to the terms of the Textron Documents and the Collateral
Sharing Agreement, the Borrower will, from time to time, at its expense,
execute, deliver, file, register, and record (in such manner and form as the
Collateral Agent may require) any statement, assignment, stock powers,
instrument, document, agreement, or other paper and take any other action
(including, without limitation, any filings of financing or continuation
statements under the UCC) that the Majority Holders or Collateral Agent may
from time to time determine to be necessary or desirable in order to create,
preserve, upgrade in rank (to the extent required hereby), perfect, confirm, or
validate the lien and first or other priority security interests granted the
Noteholders, or to enable the Noteholders to obtain the full benefits of this
Pledge Agreement (including control, as that term is used in Articles 8 and 9
of the UCC), and to enable the Noteholders to exercise and enforce any of its
rights, powers, and remedies hereunder with respect to any of the Collateral.
At the request of the Majority Holders or the Collateral Agent, the
Borrower will use its reasonable best efforts to obtain the consent or
acknowledgement of any Person that is necessary or desirable to effect the
pledge hereunder of any right, title, claims, and benefits now owned or
hereafter acquired by the Borrower.
To the extent permitted by law, the Borrower hereby authorizes the
Collateral Agent and each Noteholder to execute and file financing statements
or continuation statements without the Borrower's signature appearing thereon.
The Borrower agrees that a carbon, photographic, or other reproduction of this
Pledge Agreement or of a financing statement is sufficient as a financing
statement. The Borrower shall pay the costs of, or incidental to, any financing
or continuation statements concerning the Collateral. In the event that any
re-recording or refiling thereof (or filing of any statements of continuation
or assignment of any financing statement) is required to protect and preserve
such security interest, the Borrower, at its own cost and expense,
PLEDGE AND SECURITY AGREEMENT PAGE 13
14
shall cause the same to be re-recorded and/or refiled at the time and in the
manner requested by the Collateral Agent or Majority Holders.
The Borrower hereby authorizes the Noteholders and the Collateral
Agent to file or refile any financing statements, continuation statements,
and/or amended statements with respect to the security interests granted or to
be granted pursuant to this Pledge Agreement which, at any time, may be
required or appropriate, although the same may have been executed only by the
Collateral Agent or the Noteholders, and to execute such statements on behalf
of the Borrower.
In addition, in the event and to the extent that any of the Collateral
consists of or is represented by Certificates, including instruments or other
evidences of ownership such as would require physical possession of the same in
order to perfect the security interests therein, subject to the terms of the
Collateral Sharing Agreement and Textron Documents, the Borrower will promptly,
at its expense, deliver the same to the Collateral Agent, with any necessary
endorsements thereon. Upon the Majority Holders' request, subject to the terms
of the Collateral Sharing Agreement and the Textron Documents, the Borrower
shall promptly deliver any documents related to any of the Collateral and
provide the Noteholders all information it may reasonably request concerning
the Collateral. The Borrower will take all steps requested by the Collateral
Agent to perfect a security interest in the Additional Collateral, including
delivery of physical possession, the granting of control, the execution and
delivery of assignments and/or endorsements, the registration thereof in the
designated by the Majority QIB Holders as provided in Section 2.2, and the
execution of financing statements. The Borrower hereby irrevocably designates
Value Partners, Ltd. and the Collateral Agent for the account of the
Noteholders as agent and attorney-in-fact for the Borrower for the aforesaid
purposes.
ARTICLE IV
COVENANTS
4.1 No Liens. Subject to the terms of the Textron Documents, the
Convertible Note Pledge Agreement, the Replacement Non-QIB Note Pledge
Agreement and the Collateral Sharing Agreement, the Borrower shall not, without
the prior written consent of the Majority QIB Holders, in any manner, transfer,
assign or further encumber or permit the encumbrance of the Borrower's interest
in the Collateral. If the Collateral, or any part thereof, is sold or otherwise
disposed of in violation of these provisions, the security interest of the
Noteholders shall continue in such Collateral or any part thereof
notwithstanding such sale or other disposition, and the Borrower will deliver
any proceeds thereof to the Collateral Agent.
4.2 Loan Documents. The Borrower shall at all times during the
term of this Pledge Agreement comply with all of the affirmative covenants,
negative covenants and other terms and provisions contained in the Loan
Documents.
4.3 Consents. By the date Collateral is pledged, the Borrower
shall have obtained all consents of the respective issuer of any Collateral and
of any third party necessary for an effective pledge thereof, including the
consent of any Governmental Authority.
PLEDGE AND SECURITY AGREEMENT PAGE 14
15
4.4 Textron Collateral. Subject to the terms of the Collateral
Sharing Agreement and the Convertible Note Pledge Agreement, the Borrower shall
take all action which is necessary or advisable in order for the Noteholders to
obtain, and the Noteholders shall receive, a first priority lien and security
interest in the Textron Collateral not less than ten (10) Business Days
following the date the lien of Textron in the Textron Collateral terminates.
4.5 Reserved.
4.6 Taxes. All payments due the Noteholders under the Loan
Documents shall be made without set-off or counterclaim and free and clear of
any deductions, including deductions for taxes, unless the Borrower is required
by law to make such deductions. If (a) any Noteholder shall be subject to any
tax with respect to any such payment (other than income or franchise taxes), or
(b) the Borrower shall be required to withhold or deduct any tax on any such
payment, then such Noteholder may claim compensation from the Borrower under
Section 4.7. Whenever taxes must be withheld by the Borrower with respect to
any such payments, the Borrower shall promptly furnish to the Noteholders
official receipts (to the extent that the relevant governmental authority
delivers such receipts) evidencing payment of any such taxes so withheld. If
the Borrower fails to pay any such taxes when due or fails to remit to the
Noteholders the required receipts evidencing payment of any such taxes so
withheld or deducted, the Borrower shall indemnify the affected Noteholder for
any incremental taxes and interest or penalties that may become payable by such
Noteholder as a result of any such failure.
4.7 Compensation Claims. Within fifteen (15) days after the
receipt by the Borrower of a certificate from any of the Noteholders setting
forth why such Noteholder is claiming compensation under Section 4.6 and
computations (in reasonable detail) of the amount thereof, the Borrower shall
pay to such Noteholder such additional amounts as such Noteholder sets forth in
such certificate as sufficient fully to compensate it on account of the
foregoing provisions of Section 4.6, together with interest on such amount from
the 15th day after receipt of such certificate until payment in full thereof at
the applicable interest rate on the Notes which is then in effect. The
reasonable determination of such Noteholder of the amount to be paid to it and
the basis for computation thereof hereunder shall, in the absence of manifest
error, be conclusive. In determining such amount, such Noteholder may use any
reasonable averaging and attribution methods.
4.8 Other Information. The Borrower shall use its best efforts
to, and cause the trustee or servicing agent for a Securitization to, enable
the Noteholders' authorized officers and representatives, during normal
business hours upon reasonable notice and at reasonable intervals, to examine
documents, bank statements and other records and to make copies and notes
therefrom for the purpose of ascertaining the financial condition of the
Borrower and its subsidiaries and the condition of the Collateral, provided,
however, that any such examination shall be at the Borrower's expense,
including all reasonable and necessary travel expenses, but excluding salaries
for the officers and representatives conducting such examination.
4.9 Books and Records. The Borrower shall at all times keep its
records concerning the Collateral at its chief executive office and principal
place of business (which shall be one and
PLEDGE AND SECURITY AGREEMENT PAGE 15
16
the same) as set forth in this Pledge Agreement, or so long as the Borrower
shall have taken all steps reasonably necessary to perfect the Noteholders'
security interest in the Collateral with respect to such new address, at such
other address as the Borrower may specify by notice actually received by the
Noteholders and the Collateral Agent not less than (10) Business Days prior to
such change of address.
4.10 Insurance Policies. The Borrower grants to the Collateral
Agent on behalf of the Noteholders full power and authority as its
attorney-in-fact, effective upon notice to the Borrower after the occurrence
and during the continuance of an Event of Default, to adjust and settle any
insurance policy owned by the Borrower insuring against loss to the Collateral,
to endorse any drafts thereon and to sign receipts for any payments thereunder.
Any amounts that the Collateral Agent receives under any such policy (including
return of unearned premiums) insuring against loss to the Collateral shall be
delivered to the Collateral Agent on behalf of the Noteholders to be held as
Collateral.
4.11 Performance of Securitization Obligations. The Borrower shall
perform all servicing and other obligations required to be performed by it
under the Securitization agreements or any other agreement relating to the
Collateral and the Textron Collateral.
4.12 Protection of the Collateral. All Collateral shall be free
and clear of any liens and restrictions on the transfer hereof, except as
specifically permitted or granted herein. The Borrower shall defend the title
to the Collateral against all claims and demands which could have an effect on
the Noteholders' rights or privileges hereunder. Except as set forth in the
Securitization documents, the Convertible Note Pledge Agreement, the
Replacement Non-QIB Note Pledge Agreement, the Collateral Sharing Agreement and
the Textron Documents, the Borrower shall keep the respective Collateral free
and clear of all liens, claims, security interests, restrictions of transfer,
charges, encumbrances, taxes and assessments, and shall pay all taxes,
assessments and fees relating to the Collateral. The Borrower will exclude from
contracts to which it becomes a party after the date hereof, provisions that
would prevent the Borrower from creating and maintaining in favor of the
Noteholders a security interest in the Collateral as pledged hereby. The
Borrower shall not modify, amend or waive any terms or conditions of the
Collateral or the Textron Collateral (including the waiver of a default), or
any rights or interest therein, without the prior written consent of the
registered holders of not less than fifty percent (50%) in aggregate principal
amount of the Notes, the Convertible Notes and the Replacement Non-QIB Notes,
considered as a single class, then outstanding that have an interest in such
collateral. The Borrower will not sell, assign, transfer or otherwise dispose
of any of the Collateral. The Borrower will not take any action or suffer to
exist any conditions that could have an adverse effect on the Noteholders'
rights (including, without limitation, the security interest in the Collateral)
granted hereunder, subject to the Greenwich Documents and the Textron
Documents.
4.13 Applicable Law. The Borrower will not use any of the
Collateral in violation of any applicable law.
4.14 Reserved.
PLEDGE AND SECURITY AGREEMENT PAGE 16
17
4.15 Records. The Borrower shall allow each Noteholder to inspect
all records of the Borrower relating to the Collateral or to the Notes, and to
make and take away copies of such records.
4.16 Notice of Change. The Borrower shall promptly notify the
Noteholders of any change in any fact or circumstances warranted or represented
by the Borrower in this Pledge Agreement or in any other writing furnished by
the Borrower to the Noteholders in connection with the Collateral or the
obligations.
4.17 Notice of Claims. The Borrower shall promptly notify the
Noteholders of any claim, action or proceeding affecting title to the
Collateral, or any part thereof, or the security interest herein, and, at the
request of the Majority Holders, appear in and defend, at the Borrower's
expense, any such action or proceeding.
4.18 Rule 144. The Borrower will cooperate fully with the
Noteholders and the Collateral Agent with respect to any sale by the Collateral
Agent of any of the Collateral, including full and complete compliance with all
requirements of Rule 144 under the Securities Act of 1933 and will give to the
Collateral Agent all information and will do all things necessary, including
the execution of all documents, forms, instruments, and other items, to comply
with Rule 144 and any and all other rules, regulations or laws of the United
States or the appropriate state necessary for the complete and unrestricted
sale and/or transfer of the Collateral and will exercise its best efforts to
have the issuer of such collateral, upon the request of the Collateral Agent,
publicly disseminate all information required to satisfy Rule 144(c).
4.19 Merger. The Borrower shall not vote for, or consent to, any
amendment of the articles of incorporation or charter of any issuer of
Collateral that might materially adversely affect the value of the Collateral
or permit the issuer thereof to merge or consolidate with or into any other
corporation, firm or entity.
4.20 Dividends and Other Distributions. Unless and until an Event
of Default shall have occurred and be continuing, all ordinary cash dividends
payable in respect of the Collateral shall be paid to the Borrower. The
Collateral Agent on behalf of the Noteholders shall be entitled to receive
directly, and to retain as part of the Collateral:
(i) all other or additional stock, instruments or other
securities or property (including, but not limited to, cash dividends
other than as set forth above) paid or distributed by way of dividend
or otherwise in respect of the Collateral;
(ii) all other or additional stock, instruments or other
securities or property (including, but not limited to, cash) paid or
distributed in respect of the Collateral by way of stock-split,
spin-off, split-up, reclassification, combination of shares or similar
rearrangement;
(iii) all other or additional stock, instrument or other
securities or property (including, but not limited to, cash) which may
be paid in respect of the Collateral by reason of any consolidation,
merger, exchange of stock, conveyance of assets, liquidation or
similar corporate reorganization; and
PLEDGE AND SECURITY AGREEMENT PAGE 17
18
(iv) all other property (other than cash) paid or
distributed by way of dividend or distribution in respect of the
Collateral.
All dividends, distribution or other payments which are received by the
Borrower contrary to the provisions of this Section 4.20 or Section 5 shall be
received in trust for the benefit of the Pledgee, shall be segregated from
other property funds of the Pledgor and shall be forthwith paid over to the
Pledgee as Collateral in the same form as so received (with any necessary
endorsement).
Except as expressly provided for in this Agreement, all payments
received by the Collateral Agent with respect to the Collateral, shall, at the
Collateral Agent's option, be deposited in a special interest bearing account
at a bank (which may be, but need not be, a trust account or escrow account
maintained at the Collateral Agent) to be designated by the Collateral Agent in
the name of the Noteholders and the holders of the Convertible Notes and the
Replacement Non-QIB Notes, as applicable, styled "Collateral Account". Funds in
said account are hereby assigned to the Collateral Agent on behalf of the
Noteholders and shall be impressed with a lien to secure the Notes, and shall
be applied by the Collateral Agent as provided for herein. Nothing herein shall
restrict the right of the Collateral Agent to exercise rights regarding the
distribution of proceeds as provided in Section 9-207 of the applicable UCC (or
a similar provision).
ARTICLE V
REMEDIES
5.1 Remedies. If an Event of Default shall have occurred and be
continuing, then the Collateral Agent may, without limitation, to the fullest
extent permitted by applicable law, but subject to the Collateral Sharing
Agreement and the Textron Documents, exercise any or all of the following
rights:
(a) Proceed to exercise any rights or remedies the Noteholders
may have hereunder or under the Notes or any other Loan Documents or otherwise;
(b) Pursue, consecutively or cumulatively, any rights or remedies
the Noteholders may have at law, equity or otherwise, including all rights and
remedies available to secured parties under the applicable UCC provisions;
(c) Cancel or otherwise terminate any additional obligation to
fund with the Borrower without prior notice to the Borrower (and the Borrower
will be liable to the Noteholders for any resulting loss, costs and expenses),
and the Collateral Agent (or Noteholders) may: (i) set off any obligation to
the Borrower hereunder or thereunder against any obligation of the Borrower to
the Noteholders hereunder or thereunder; and (ii) realize upon property
securing any obligation to Noteholders hereunder or thereunder;
PLEDGE AND SECURITY AGREEMENT PAGE 18
19
(d) Require the Borrower to, upon the Collateral Agent's request,
assemble the Collateral and otherwise make it available to the Collateral
Agent. The Collateral Agent may have a receiver appointed for all or any
portion of the Borrower's assets or business which constitutes the Collateral
in order to manage, protect, preserve, sell and otherwise dispose of all or any
portion of the Collateral in accordance with the terms of the Loan Documents,
to continue the operations of the Borrower and to collect all revenues and
profits therefrom to be applied to the payment of the Notes, including the
compensation and expenses of such receiver. The Collateral Agent may offset and
apply toward the payment of the Notes (and/or toward the curing of any Event of
Default) any indebtedness from any Noteholder to the Borrower, including any
indebtedness represented by deposits in any account maintained with any
Noteholder regardless of the adequacy of any security for the Notes. The
Collateral Agent shall have no duty to determine the adequacy of any such
security in connection with any such offset;
(e) To the extent specified in written notice from the Collateral
Agent to the Borrower take any of the following actions (for the sole benefit
of the Noteholders but at the Borrower's expense):
(i) To ask for, demand, take, collect, xxx for and
receive all payments in respect of any Collateral which the Borrower could
otherwise ask for, demand, take, collect, xxx for and receive for its own use;
(ii) To extend the time of payment of any Collateral and
to make any allowance or other adjustment with respect thereto;
(iii) To settle, compromise, prosecute or defend any
action or proceeding with respect to any Collateral and to enforce all rights
and remedies thereunder which the Borrower could otherwise enforce;
(iv) To enforce the payment of any Collateral, either in
the name of the Borrower or in its own name, and to endorse the name of the
Borrower on all checks, drafts, money orders and other instruments tendered to
or received in payment of indebtedness to the Noteholders;
(v) To notify the third party payor with respect to any
Collateral of the existence of the security interest created hereby and to
cause all payments in respect thereof thereafter to be made directly to the
Collateral Agent, provided, however, that whether or not the Collateral Agent
shall have so notified such payor, the Borrower will at its expense render all
reasonable assistance to the Collateral Agent in collecting such items and in
enforcing claims thereon;
(vi) To sell, transfer, assign or otherwise deal in or
with any Collateral or the proceeds thereof, as fully as the Borrower otherwise
could do;
(vii) To receive all amounts payable in respect of the
Collateral otherwise payable under Section 4.20 to the Borrower;
PLEDGE AND SECURITY AGREEMENT PAGE 19
20
(viii) To vote all or any part of the Collateral (whether
or not transferred into the name of the Collateral Agent or the Noteholders)
and give all consents, waivers and ratifications in respect of the Collateral
and otherwise act with respect thereto as though it were the outright owner
thereof (the Borrower hereby irrevocably constituting and appointing the
Collateral Agent the proxy and attorney in fact of the Borrower, with full
power of substitution to do so); and
(ix) To transfer all or any part of the Collateral into
the Collateral Agent's name or the name of its nominee or nominees;
(f) All or any part of the Collateral may be sold for cash or
other value, and the proceeds thereof applied against any amounts owed to the
Noteholders by the Borrower, in any number of lots at public or private sale in
a commercially reasonable manner, without demand, advertisement or notice,
provided, however, that the Collateral Agent shall give the Borrower 10 days'
prior written notice by first class mail, postage prepaid, to the Borrower's
address as set forth in Section 14.3 of the time and place and proposed terms
of any public sale, or the time after which a private sale may be made, which
notice each of the Borrower and the Collateral Agent agrees to be reasonable.
At any sale or sales of Collateral, the Collateral Agent or the Noteholders or
any of their officers acting on their behalf, or their assigns, may bid for and
purchase all or any part of the property and rights so sold, may use all or any
portion of the indebtedness owed to the Noteholders as payment for the property
or rights so purchased, and upon compliance with the terms of such sale may
hold and dispose of such property and rights without further accountability to
the Borrower, except for the proceeds of such sale or sales pursuant to Article
X. The Borrower acknowledges that any such sale will be made by the Collateral
Agent or the Noteholders on an "as is" basis with disclaimers of all
warranties, whether express or implied. The Borrower will execute and deliver
or cause to be executed and delivered such instruments, documents, assignments,
waivers, certificates and affidavits, will supply or cause to be supplied such
further information and will take such further action, as the Collateral Agent
or the Noteholders shall reasonably request in connection with any such sale.
The Collateral Agent and the Noteholders shall not be obligated to make such
sale of Collateral regardless of whether such notice of sale has theretofore
been given. Each purchaser at any such sale shall hold the property so sold
absolutely free from any claim or right on the part of the Borrower. In lieu of
selling the Collateral, the Noteholders may credit the current market value of
the Collateral, as determined in a commercially reasonable manner, all free
from any right of redemption, against any amounts owed by the Borrower to the
Noteholders; provided, however, that the Borrower shall remain liable for any
deficiency and shall pay interest on such deficiency as prescribed in the Notes
(the Borrower agreeing that, to the extent that applicable law requires the
giving of notice by the Collateral Agent to the Borrower of any such
disposition, the minimum time required by such law (or if no minimum time is
specified, one Business Day) shall constitute reasonable notice). Neither the
Collateral Agent nor any Noteholder shall be liable for failure to collect or
realize upon any or all of the Collateral or for any delay in so doing nor
shall any of them be under any obligation to take action whatsoever with regard
thereto;
(g) If, at any time when the Collateral Agent shall determine to
exercise its rights hereunder to sell all or a part of the securities included
in the Collateral, the securities in question
PLEDGE AND SECURITY AGREEMENT PAGE 20
21
shall not be effectively registered under applicable law, the Collateral Agent
may, in its sole discretion, sell such securities by private or other sale not
requiring such registration in such manner and in such circumstances as the
Collateral Agent may deem necessary or advisable in order that such sale may be
effected in accordance with applicable securities laws without such
registration and the related delays, uncertainty and expense. Without limiting
the generality of the foregoing, in any event the Collateral Agent may in its
sole discretion; (a) approach and negotiate with a single purchaser or one or
more possible purchasers to effect such sale; (b) restrict such sale to one or
more purchaser each of whom will represent and agree that such purchaser is
purchasing for its own account, for investment and not with a view to the
distribution or sale of such securities; and (c) cause to be placed on
certificates representing the securities in question a legend to the effect
that such securities have not been registered under applicable law and may not
be disposed of in violation of the provisions thereof. The Borrower agrees that
such manner of disposition is commercially reasonable, that it will, upon the
Collateral Agent's request, give any such purchaser access to such information
regarding the issuer of the securities in question as the Collateral Agent may
reasonably request and that the Collateral Agent shall not incur any
responsibility for selling all or a part of the securities included in the
Collateral at any private or other sale not requiring such registration,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration under applicable
law or until made in compliance with certain other rules or exemptions from the
registration provisions under applicable law. The Borrower acknowledges that no
adequate remedy at law exists for breach by it of this provision and that such
breach would not be adequately compensable in damages and therefore agrees that
this provision may be specifically enforced; and/or
(h) Transfer or assign the Loan Documents to any Person without
the prior written consent of the Borrower.
5.2 Cost and Expenses on Default. If an Event of Default shall
have occurred, the Collateral Agent and Noteholders shall be entitled to
collect, in addition to principal, interest and delinquency charges hereunder,
all costs of collection, including without limitation, reasonable attorneys'
fees and disbursements, incurred in connection with the protection or
realization of Collateral or in connection with any of the such collection
efforts, whether or not suit on the Notes or any foreclosure proceeding is
filed, and all such costs and expenses shall be payable on demand and until
paid shall also be secured by the Collateral and other Loan Documents and by
all other collateral held by the Collateral Agent as security for the
Borrower's obligations to the Noteholders.
5.3 Marshaling. Neither the Collateral Agent nor the other
Noteholders shall be required to make any demand upon, or pursue or exhaust any
of its rights or remedies against, the Borrower or any guarantor, pledgor or
any other Person with respect to the payment of the Notes or to pursue or
exhaust any of its rights or remedies with respect to any Collateral therefore
or any direct or indirect guarantee thereof or insurance with respect thereto.
Neither the Collateral Agent nor the Noteholders shall be required to marshal
the Collateral or any guarantee of the Notes or to resort to the Collateral or
any such guarantee in any particular order, and all of its rights hereunder or
under any other Loan Document shall be cumulative. To the
PLEDGE AND SECURITY AGREEMENT PAGE 21
22
extent it may lawfully do so, the Borrower absolutely and irrevocably waives
and relinquishes the benefit and advantage of, and covenants not to assert
against the Collateral Agent or the other Noteholders, any valuation, stay,
appraisement, extension, redemption or similar laws now or hereafter existing
which, but for this provision, might be applicable to the sale of any
Collateral made under the judgment, order or decree of any court, or privately
under the power of sale conferred by this Pledge Agreement, or otherwise.
Without limiting the generality of the foregoing, the Borrower: (a) agrees that
it will not invoke or utilize any law which might prevent, cause a delay in or
otherwise impede the enforcement of the rights of the Collateral Agent or the
Noteholders in the Collateral; (b) waives all such laws; and (c) agrees that it
will not invoke or raise as a defense to any enforcement by the Collateral
Agent or the other Noteholders of any rights and remedies relating to the
Collateral or the Notes, any legal or contractual requirement with which the
Collateral Agent or the other Noteholders may have in good faith failed to
comply. In addition, the Borrower waives any right to prior notice (except to
the extent expressly required by the other provisions of this Pledge Agreement)
or judicial hearing in connection with foreclosure on or disposition of any
Collateral, including any such right which the Borrower would otherwise have
under the Constitution of the United States of America, any state or territory
thereof or any other jurisdiction. The Borrower hereby waives and releases to
the fullest extent permitted by law any right or equity of redemption with
respect to the Collateral, whether before or after sale hereunder.
5.4 Any action or decision to be made by the Noteholders
hereunder or direction provided to the Collateral Agent hereunder may be by the
Majority QIB Holders. All rights in this Section granted to the Collateral
Agent are deemed granted to the Noteholders. So long as the Collateral Agent is
authorized and capable of exercising such rights under the Collateral Sharing
Agreement, it shall be permitted to do so.
ARTICLE VI
CONTINUING SECURITY INTEREST
The Borrower shall not assign or otherwise transfer this Pledge
Agreement or any interest herein without the Majority Holders' prior written
consent. This Pledge Agreement shall create a continuing security interest in
the Collateral and shall: (a) remain in full force and effect until the final
payment in full of all amounts payable under the Notes and the other Loan
Documents; (b) bind the Borrower, its successors and permitted assigns; and (c)
inure to the benefit of the Noteholders and its successors, transferees and
assigns.
Subject to the requirements of Sections of the Indenture and
applicable transfer restrictions, upon transfer of Notes, each of the
respective Noteholders may transfer its interest in the Loan Documents to any
of its successors or assigns, by notice to the Borrower, and such other person
or entity shall thereupon be vested with all the benefits in respect thereof
granted to such Noteholder herein or otherwise; provided that such successor or
assign has agreed in a writing, which shall be delivered to the Borrower, to
assume all of the obligations of the respective Noteholder under the Loan
Documents.
PLEDGE AND SECURITY AGREEMENT PAGE 22
23
ARTICLE VII
REPRESENTATIONS, WARRANTIES
AND ADDITIONAL COVENANTS OF BORROWER
7.1 Representations and Warranties. The Borrower represents and
warrants to the Noteholders continuously throughout the term of the Notes,
that:
(a) The Collateral is owned by the Borrower free and clear of all
liens, claims or encumbrances, except for those granted Noteholders herein
(except as provided in the Collateral Sharing Agreement, and as to the Textron
Collateral, the security interest of Textron, and as to the Certificates and
the Grantor Trust Right, subject to the applicable Securitization). Except as
disclosed in this Pledge Agreement, none of the Collateral is subject to any
option to purchase or similar rights of any Person;
(b) All Collateral (other than cash, the Grantor Trust Right or
Additional Collateral consented to in writing) shall be evidenced by
certificates or instruments, which certificates or instruments shall, pursuant
to Section 2.2, be registered and delivered as provided herein with any related
assignment forms, duly completed by the Borrower, required by the
Securitization agreements (or as to the Textron Collateral, shall be subject to
the Textron Documents until such registration and delivery as provided herein).
The Borrower will, promptly upon the receipt thereof, deliver to the Collateral
Agent any certificate or similar instrument representing any of such
Collateral, together with appropriate, duly executed assignment forms, in
accordance with the terms hereof. The Borrower will take all steps necessary to
register the pledge to the Collateral Agent or as designated by Value Partners,
Ltd. (or ownership if requested by Value Partners, Ltd. in writing) on the
books of the issuer, purchaser, trustee or custodian, as the case may be, with
respect to all Collateral that is not evidenced by certificates or other
instruments in accordance with the terms hereof;
(c) The Borrower has obtained any and all permits, licenses,
approval and consents of any Governmental Authority and any third party as may
be required to own, purchase, pledge, sell or otherwise dispose of the
Collateral and to conduct or to transact its business or own, lease or operate
its properties and is in material compliance with all applicable requirements
of law;
(d) Subject to the Convertible Note Pledge Agreement, the
Replacement Non-QIB Pledge Agreement, the Collateral Sharing Agreement and the
lien of Textron as provided in the Textron Documents, the lien of this Pledge
Agreement constitutes a first priority perfected and enforceable security
interest in the Collateral in favor of the Noteholders on each occasion which
the Borrower makes a Delivery of Collateral to the Collateral Agent, the
Borrower will be the sole record and beneficial owner of that Collateral (until
registration thereof as provided in Section 2.2) and will, subject to the terms
of this Pledge Agreement, have the right to receive all payments (subject to
the terms of any sales and servicing or pooling and servicing agreement,
indenture or any similar agreement pursuant to which the Certificates were
issued or to which the Grantor Trust Right or any other right or interest
arose) on the Collateral, in each case free and clear of all liens and security
interests other than the lien of this Pledge Agreement, and those liens set
forth above in this paragraph;
PLEDGE AND SECURITY AGREEMENT PAGE 23
24
(e) Except for financing statements contemplated or permitted by
this Pledge Agreement, the Convertible Note Pledge Agreement, the Replacement
Non-QIB Pledge Agreement or the Collateral Sharing Agreement, there are no
financing statements or other actions required under the UCC or similar law of
any state or jurisdiction required in connection with the grants of security
interests to the Noteholders set forth in this Pledge Agreement;
(f) No representation or warranty made by or on behalf of
Borrower contained in any Loan Document and no information (written or oral),
certificate, financial statement or report furnished or to be furnished by or
on behalf of the Borrower thereunder or in connection with the transactions
contemplated thereby, contains or will contain an untrue statement of a
material fact, or, omits or will omit to state any material fact (including
without limitation, whether, to the best knowledge of Borrower, Borrower or any
of its respective officers or directors (past or present) is (or during the
last five (5) years has been) under civil or criminal investigation by a
Governmental Authority or is under indictment by any Governmental Authority)
necessary to make the statements herein or therein contained, in light of the
circumstances in which made, not misleading;
(g) The Borrower does not have any reason to believe that it will
not be able to perform in all material respects all covenants and agreements to
be performed by it under this Pledge Agreement and each of the other Loan
Documents;
(h) Each of the representations and warranties of the Borrower
contained in the other Loan Documents is true and correct;
(i) The right of Borrower to receive a residual cash payment
pursuant to Section 4.05(b)(xvii) of the sale Agreement arising from the Mego
Mortgage Home Loan Trust 1996-3 is non-certificated and is evidenced only by
the Sale Agreement arising from that Securitization;
(j) Any Residual Interest Instrument pledged as Collateral shall
represent the right of the holder thereof to receive one hundred percent (100%)
of the residual interest in the interest and principal payments due on the
underlying loans securitized in that Securitization, except as follows: (a)
Class R Certificate R-0001, 1996-3 represents the right to receive one hundred
percent (100%) of the residual interests in Group 1 Loans, as that term is
defined in the Sale Agreement for that Securitization; and (b) Residual
Interest Instrument No. 1 1997-1 and Residual Certificate Xx. 0, 0000-0 each
represent the right to receive ninety-nine percent (99%) of the residual
interest in the respective Securitization;
(k) Except as disclosed on Schedule II hereto, there is no
circumstance presently in existence which prohibits the receipt of payment of
obligations due pursuant to the terms of the Certificates and the Grantor Trust
Right pledged as Collateral;
(l) To the best of Borrower's knowledge, all of the Collateral
has been duly and validly authorized, issued, is fully paid and non-assessable
and is subject to no options to purchase or similar rights;
PLEDGE AND SECURITY AGREEMENT PAGE 24
25
(m) Each Pledged Share is validly authorized, issued, is fully
paid and non assessable and is subject to no option to purchase or similar
rights;
(n) The execution, delivery and consummation of this Pledge
Agreement will not violate the charter or bylaws of the Borrower or the issuer
of any Collateral or any law, regulation, mortgage, indenture, contract,
instrument, judgment or decree applicable to or binding on the Borrower or the
issuer of any Collateral;
(o) The Pledged Shares constitute and shall at all times
constitute one hundred percent of the issued and outstanding voting and
nonvoting stock of The Money Centre;
(p) The Borrower has held the Pledged Shares, free and clear of
all liens, encumbrances and debt, and borne the full economic risk thereof
since the time of acquisition thereof on August 31, 1999 and at no time during
said period did the Borrower hold any short position in the Pledged Shares or
option to sell such shares, and at no time during such period did any other
party hold a short position in the Pledged Shares or an option to sell such
shares;
(q) Other than as provided in the Collateral Sharing Agreement
and the Convertible Pledge Agreement, the pledge, collateral assignment and
delivery to and continuous possession of the Collateral as provided herein
consisting of certificated securities pursuant to this Pledge Agreement creates
a valid and perfected first priority security interest in such securities and
the proceeds thereof, subject to no prior lien or encumbrance or to any
agreement purporting to grant to any third party a lien or encumbrance on the
property or assets of the Borrower which would include the Collateral and the
Noteholders are entitled to all the rights, priorities and benefits afforded by
the UCC or other relevant law as enacted in any relevant jurisdiction to
perfect security interests in respect of such Collateral; and
(r) "Control" (as defined in Section 8-106 of the UCC) has been
or will be obtained (a) by Value Partners, Ltd. over all Collateral consisting
of securities to be registered in its name and (b) as to Collateral not
registered in the name of Value Partners, Ltd., by the Noteholders and
Convertible Noteholders.
ARTICLE VIII
THE AGENT MAY PERFORM
The Borrower hereby appoints any officer, general partner or agent of
the Collateral Agent and/or the Noteholders as the Borrower's true and lawful
attorney-in-fact with full authority in the place and stead of the Borrower and
in the name of the Collateral Agent or the Noteholders (as the case may be) or
otherwise, from time to time in the Collateral Agent or the Majority Holders'
discretion, to take any action and to execute any agreements, documents and
instruments which the Collateral Agent or the Majority Holders may deem
necessary or advisable to accomplish the purpose of this Pledge Agreement. The
powers conferred on the Collateral Agent and the Majority Holders hereunder are
solely to protect the Noteholders' interest in the Collateral and shall not
impose any duty upon the Collateral Agent or the
PLEDGE AND SECURITY AGREEMENT PAGE 25
26
Noteholders to exercise any such powers. All authorization and agencies herein
contained with respect to the Collateral are irrevocable and powers coupled
with an interest. All rights granted the Collateral Agent herein shall be
deemed granted the Noteholders.
ARTICLE IX
CUSTODY OF COLLATERAL
Except as provided by applicable law that cannot be waived, neither
the Noteholders nor the Collateral Agent will have any duty as to the custody
and protection of the Collateral, the collection of any part thereof or of any
income thereon or the preservation or exercise of any rights pertaining
thereto, including rights against prior parties, except for the use of
reasonable care in the custody and physical preservation of any Collateral in
its possession. Neither the Noteholders nor the Collateral Agent will be liable
or responsible for any loss or damage to any Collateral, or for any diminution
in the value thereof, by reason of the act or omission of any agent selected by
the Collateral Agent or the Noteholders acting in good faith.
ARTICLE X
APPLICATION OF COLLATERAL AND PROCEEDS
Subject to the Collateral Sharing Agreement, the proceeds of any sale
of, or other realization upon, all or any part of the Collateral shall be
applied in the order set forth in Section 5.3 of the Notes.
ARTICLE XI
SECURITY INTEREST ABSOLUTE
All rights of the Noteholders hereunder and the interest and all
obligations of the Borrower hereunder shall be absolute and unconditional
irrespective of:
(a) except as expressly provided in Section 14.9, any
lack of validity or enforceability of the Loan Documents or any other agreement
or instrument relating to the Loan Documents;
(b) any change in the time, manner or place of payment
of, or in any other term of, the Loan Documents, or any renewal or extension of
the Loan Documents or any other amendment or waiver of or any consent to any
departure from this Pledge Agreement or any other agreement or instrument;
(c) any sale, exchange, release or nonperfection of any
of the Collateral, or any release of any guarantor or any person liable in any
manner for the collection of the Notes, or any amendment or waiver of or
consent to or departure from any guaranty or the Loan Documents; or
(d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Borrower in respect
of any of the Loan Documents.
PLEDGE AND SECURITY AGREEMENT PAGE 26
27
ARTICLE XII
REMEDIES CUMULATIVE
Each right, power and remedy of the Collateral Agent and the
Noteholders provided for in this Pledge Agreement or any other Loan Document,
or now or hereafter existing at law or in equity or by statute 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 the Collateral
Agent or the Noteholders of any one or more of the rights, powers or remedies
provided for in this Pledge Agreement or any other Loan Document or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Collateral Agent of all such
other rights, powers or remedies, and no failure or delay on the part of the
Collateral Agent to exercise any such right, power or remedy shall operate as a
waiver thereof. Unless otherwise required by the Loan Documents, no notice to
or demand on the Borrower in any case shall entitle the Borrower to any other
or further notice or demand in similar other circumstances or constitute waiver
of any of the rights of the Collateral Agent to any other or further action in
any circumstances without demand or notice. The obligations of the Borrower
under the Loan Documents are with full recourse to the Borrower and the
Borrower shall remain liable for any deficiency upon the exercise of remedies
by Collateral Agent.
ARTICLE VIII
RESERVED
ARTICLE XIV
MISCELLANEOUS
14.1 Successors and Assigns; No Third-Party Beneficiaries. This
Pledge Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns. Except as set
forth herein and in the Collateral Sharing Agreement, this Pledge Agreement
shall not confer any rights, obligations, remedies or liabilities upon any
Person other than the parties hereto and their permitted successors and
assigns.
14.2 GOVERNING LAW. THE PARTIES HERETO ACKNOWLEDGE THAT THE
TRANSACTIONS CONTEMPLATED BY THIS PLEDGE AGREEMENT AND THE NOTES BEAR A
REASONABLE RELATION TO THE STATE OF MINNESOTA IN THAT, INTER ALIA, AN INTENDED
PARTICIPANT IN THE NOTES HAS ITS PRINCIPAL PLACE OF BUSINESS IN THE STATE OF
NEW YORK, PART OF THE NEGOTIATIONS RELATING TO THE TRANSACTIONS CONTEMPLATED
HEREBY HAS OCCURRED IN THE STATE OF MARYLAND AND THE CLOSING WILL OCCUR IN SUCH
STATE. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT
OF LAWS THEREOF.
14.3 Notices. All notices, requests, demands, claims and other
communications under this Pledge Agreement shall be in writing (unless
otherwise specified herein) and shall be
PLEDGE AND SECURITY AGREEMENT PAGE 27
28
deemed duly given if (and then two (2) Business Days after) it is sent by
registered or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
If to Borrower:
Altiva Financial Corporation
Sixth Floor
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Office of the Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a Copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Driver, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Collateral Agent:
U.S. Trust Company of Texas, N.A.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxx, L.L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 817-347-6650
Value Partners, Ltd.
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PLEDGE AND SECURITY AGREEMENT PAGE 28
29
Bergman, Xxxxx & Bird, L.L.P.
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
And
Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may send any notice, request, demand, claim or other
communications hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until it actually is received by the intended
recipient. Any party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by
giving the other party notice in the manner herein set forth.
14.4 Amendments; Waivers. Subject to the Collateral Sharing
Agreement and except to the extent a different percentage is authorized, this
Pledge Agreement may not be amended, modified or supplemented except in writing
signed by each of the parties hereto (or their successors and assigns). Each
party may, by written notice to the other, extend the time for or waive the
performance of any of the obligations of such other hereunder. The waiver by
any party hereto of a breach of this Pledge Agreement shall not operate or be
construed as a waiver of any other or subsequent breach. No delay, omission or
act by a party shall be deemed a waiver of such party's rights, powers or
remedies. No course of dealing between the parties hereto shall operate a
waiver of any provision hereof.
14.5 Payment of Expenses; Indemnity. The Borrower shall:
(a) pay or reimburse the Noteholders and the Collateral Agent on
demand for all of its reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of any amendment,
modification or supplement to, or any waiver under, any Loan Document and any
other document prepared in connection therewith, and the
PLEDGE AND SECURITY AGREEMENT PAGE 29
30
consummation of the transactions contemplated thereby, including, without
limitation, the reasonable fees and disbursements of counsel to the Noteholders
and the Collateral Agent;
(b) pay on demand all reasonable costs and expenses of the
Noteholders and Collateral Agent, including, without limitation, the reasonable
fees and disbursements of counsel to Noteholders and the Collateral Agent, in
connection with the occurrence or continuance of an Event of Default and the
enforcement, collection, protection or preservation (whether through
negotiation, legal proceedings or otherwise) of this Pledge Agreement or any
other Loan Document, the Collateral, and any obligation or any rights, remedy,
power or privilege of the Noteholders and Collateral Agent hereunder or
thereunder;
(c) pay and hold the Noteholders and Collateral Agent harmless
from and against any and all present and future stamp, excise, recording or
other similar taxes or fees payable in connection with the execution, delivery,
recording and filing of any Loan Document and hold the Noteholders and
Collateral Agent harmless from and against any and all liabilities with respect
to or resulting from any delay or omission to pay such taxes or fees; and
(d) indemnify and hold harmless the Noteholders and Collateral
Agent and their respective directors, officers, partners, employees and agents
from and against, any and all liabilities, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements, including, without
limitation, the reasonable fees and disbursement of counsel to the Noteholders
and Collateral Agent and such other parties, incurred by any of them in
connection with, arising out of or in any way relating to any investigation,
claim, litigation or other proceeding, pending or threatened (whether or not
any of them is designated a party thereto), in connection with, arising out of
or in any way related to this Pledge Agreement or any other Loan Document or
any of the transactions contemplated herein or therein or any use of the
proceeds of the Notes by the Borrower; provided that the Noteholders and
Collateral Agent shall not be entitled to any indemnification for any of the
foregoing resulting from their gross negligence or willful misconduct as
determined by a court of competent jurisdiction.
If, and to the extent that, the indemnity obligations of the Borrower
hereunder may be unenforceable for any reason, the Borrower hereby agrees to
make the maximum contributions to the payment and satisfaction of each of such
indemnity obligations which is permissible under applicable law.
14.6 Limited Liability. No recourse under any Loan Document shall
be had against, and no personal liability shall attach to, any officer,
employee, director, partner, affiliate, shareholder or agent of any party
hereto, as such, by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute or otherwise in respect of any
of the Loan Documents, it being expressly agreed and understood that each Loan
Document is solely a corporate or limited liability entity obligation of each
party hereto, and that any and all personal liability, either at common law or
in equity, or by statute or constitution, of every such officer, employee,
director, partner, affiliate, shareholder or agent for breaches by any party
hereto of any obligation under any Loan Document is hereby expressly waived as
a condition of and in consideration for the execution and delivery of this
Pledge Agreement.
PLEDGE AND SECURITY AGREEMENT PAGE 30
31
14.7 Counterparts. This Pledge Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
14.8 Severability; Interpretation. Any term or provision of this
Pledge Agreement that is invalid, illegal or unenforceable in any situation in
any jurisdiction shall not affect the validity, legality or enforceability of
the remaining terms and provisions hereof or the validity, legality or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction.
14.9 Usury. All agreements between Borrower and the Noteholders on
behalf of the Noteholders, whether now existing or hereafter arising and
whether written or oral, are hereby limited so that in no contingency, whether
by reason of demand or acceleration of the maturity Date, as that term is
defined in the Notes, or otherwise, shall the interest contracted for, charged,
received, paid or agreed to be paid to the Noteholders exceed the maximum
amount permissible under the laws of the State of New York (hereinafter the
"Applicable Law"). If, from any circumstance whatsoever, interest would
otherwise be payable to Noteholders in excess of the maximum amount permissible
under the Applicable Law, the interest payable to Noteholders shall be reduced
to the maximum amount permissible under the Applicable Law, and if from any
circumstance Noteholders shall ever receive anything of value deemed interest
by the Applicable Law in excess of the maximum amount permissible under the
Applicable Law, an amount equal to the excessive interest shall be applied to
the reduction of the principal of the Notes and not to the payment of interest,
or if such excessive amount of interest exceeds the unpaid balance of principal
of the Notes, such excess shall be refunded to the Borrower. All interest paid
or agreed to be paid to the Noteholders shall, to the extent permitted by the
Applicable Law, be amortized, pro-rated, allocated and spread throughout the
full period (including any renewal or extension) until payment in full of the
principal so that the interest on the Notes for such full period shall not
exceed the maximum amount permissible under the Applicable Law. The Noteholders
expressly disavow any intent to contract for, charge or receive interest in an
amount which exceeds the maximum amount permissible under the Applicable Law.
This paragraph as well as a similar paragraph as set forth in the Notes shall
control all agreements between Borrower and the Noteholders. All protection
afforded the Noteholders shall be afforded the Collateral Agent.
14.10 Time is of the Essence; No Waiver; Cumulative Remedies. Time
and exactitude of each of the terms, obligations, covenants and conditions of
this Pledge Agreement are hereby declared to be of the essence.
14.11 Binding Effect. This Pledge Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns. Subject to Article VI, the
Noteholders may assign this Pledge Agreement, and if assigned, the assignee
shall be entitled, upon notifying the Borrower, to the payment and performance
of the obligations arising under the Loan Documents and agreements of the
PLEDGE AND SECURITY AGREEMENT PAGE 31
32
Borrower hereunder and to all of the rights and remedies of the Noteholders
hereunder, and the Borrower will assert no claims or defenses the Borrower may
have against the Noteholders against the assignee. The gender and number used
in this Pledge Agreement are used for reference term only and shall apply with
the same effect whether the parties are masculine, feminine, neuter, singular
or plural.
14.12 Multiple Counterparts. This Pledge Agreement may be executed
in separate or multiple counterparts by the parties, and all of such
counterparts shall be considered as one and the same instrument notwithstanding
the fact that various counterparts are signed by only one or more of the
parties, and all of such Pledge Agreements shall be deemed but one and the same
Pledge Agreement.
14.13 Headings. The captions and Section headings in this Pledge
Agreement are for convenience of reference only, and shall not limit or
otherwise affect the meaning or interpretation of any provision hereof.
14.14 Secured Party. This Pledge Agreement shall constitute a
security agreement, and the Noteholders shall have all of the rights in the
Collateral of a secured party, including under Articles 8 and 9 of the UCC.
14.15 Chief Executive Office; Records. The chief executive office
of the Borrower is located at the address specified in the introduction. The
Borrower's state of incorporation is Delaware. The Borrower will not move its
chief executive office or change its state of incorporation except to such new
location as such Borrower may establish in accordance with the last sentence in
this Section 14.15. The Borrower shall not establish a new location for such
office or change its state of incorporation until (i) it shall have given to
the Noteholders and the Collateral Agent not less than 30 days' prior written
notice of its intention so to do, clearly describing such new location and
providing such other information in connection therewith as the Noteholders and
the Collateral Agent may reasonably request and (ii) with respect to such new
location or state of incorporation, it shall have taken all action,
satisfactory to the Collateral Agent and the Noteholders, to maintain the
security interest of the Noteholders in the Collateral intended to be granted
hereby at all times fully perfected and in full force and effect.
14.16 Beneficial Owners. References herein to registered holders of
Notes, Replacement Non-QIB Notes and Convertible Notes shall be deemed to
include beneficial owners of Notes, Convertible Notes and Replacement Non-QIB
Notes to the extent provided in the Convertible Notes and in the Indenture
relating to the Notes and Replacement Non-QIB Notes, respectively.
PLEDGE AND SECURITY AGREEMENT PAGE 32
33
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed as of the date first above written.
ALTIVA FINANCIAL CORPORATION
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
Address:
0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Acknowledged:
UNITED STATES TRUST COMPANY OF NEW YORK
as Agent for the Noteholders
By: /s/ XXXXX X. XXXXXXXX
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
PLEDGE AND SECURITY AGREEMENT PAGE 33
