EXHIBIT 10.4
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT made as of the 20th day of December,
2000, is by and between FIBERCORE, INC., a Nevada corporation with an address at
000 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter the "Pledgor")
and FLEET NATIONAL BANK, a national banking association with an office at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter the "Bank").
This Pledge and Security Agreement is executed and delivered to the Bank
as one of the Supplemental Documents referred to in a Loan Agreement of even
date herewith by and between the Pledgor and the Bank (as amended from time to
time, the "Agreement") and shall not be effective, and no security interest
hereunder shall attach, until the Bank makes an election under Section 9.02 of
the Agreement. In order to induce the Bank to make loans (including any loan by
renewal or extension) or other financial accommodations to the Pledgor as set
forth in the Agreement, and in consideration thereof and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Pledgor hereby agrees as follows:
1. Pledge of Collateral. In order to secure the payment and satisfaction
of all indebtedness, obligations and liabilities of the Pledgor to the Bank of
every kind and description, absolute or contingent, due or to become due,
whether for payment or performance, now existing or hereafter arising,
regardless of how the same arise or by what instrument, agreement, or book
account they may be evidenced, or whether evidenced by any instrument, agreement
or book account, including without limitation all loans (including any loan by
renewal or extension), all indebtedness, all undertakings to take or refrain
from taking any action, all indebtedness, liabilities or obligations owing by
the Pledgor to others which the Bank may have obtained by purchase, negotiation,
discount, assignment or otherwise, and all interest, taxes, fees, charges,
expenses and attorney's fees chargeable to the Pledgor or incurred by the Bank
in connection with any transaction between the Pledgor and the Bank, and further
specifically including without limitation all obligations of the Pledgor to the
Bank pursuant to the Agreement (any and all of the foregoing collectively
referred to as the "Obligations"), the Pledgor hereby pledges, assigns and
transfers to the Bank, and grants to the Bank a continuing security interest in
and to, and control of, the shares of securities or other property described on
the attached Exhibit A, made a part hereof, and all other property described in
any other schedule annexed hereto together with any other property delivered to
the Bank hereunder and all additions thereto and substitutions therefor and all
cash proceeds thereof (all of such securities or other property collectively
referred to as the "Collateral").
2. Rights and Remedies. The Bank may transfer the Collateral into its name
or that of its nominee and may receive the income and any distributions thereon
and hold the same as Collateral for the Obligations, or apply the same to any
Obligation, whether or not a default or an Event of Default has occurred. The
Pledgor hereby authorizes and empowers the Bank to receive and accept said
Collateral; to use said Collateral as collateral security for the payment of any
and all Obligations of the Pledgor to the Bank and for the payment of any or all
of said Obligations of the Pledgor to the Bank due or to become due; to exercise
any and all rights inherent in the ownership of the Collateral and to dispose of
the same or any part thereof at any time and to apply the proceeds thereof all
in any manner deemed proper by the Bank, as fully and completely as if done by
the Pledgor; and to deal with said Collateral in the same way and with the same
force and effect as if the Bank were the absolute owner thereof.
3. Covenants and Warranties.
3.1 The Pledgor agrees to reimburse the Bank, on demand, for any
amounts paid or advanced by the Bank for the purpose of preserving the
Collateral or any part thereof and/or any liabilities or expenses incurred by
the Bank as the transferor or holder of the Collateral.
3.2 The Bank shall be under no duty to: (i) collect or protect the
Collateral or any proceeds thereof or give any notice with respect thereto; (ii)
preserve the rights of the Pledgor with respect to the Collateral against third
parties; (iii) preserve rights against any parties to any instrument or chattel
paper which may become a part of the Collateral; (iv) sell or otherwise realize
upon the Collateral; or (v) seek payment from any particular source. Without
limiting the generality of the foregoing, the Bank shall not be obligated to
take any action in connection with any conversion, call, redemption, retirement
or other event relating to any of the Collateral.
3.3 If the Collateral shall at any time or from time to time become
insufficient or unsatisfactory to the Bank, the Pledgor shall, on demand,
pledge, assign, transfer and deposit with the Bank and grant to the Bank a
continuing security interest in and to such additional property satisfactory to
the Bank as the Bank may request.
3.4 Any share, dividend, reclassification, readjustment or other
change declared or made in the capital structure of the company which has issued
the shares of securities pledged as Collateral hereunder, together with all new,
substituted and additional shares or other securities issued to the Pledgor by
reason of any such change, shall be held by the Bank under the terms of this
Agreement in the same manner as the shares of securities pledged as Collateral
hereunder.
3.5 Pledgor hereby warrants and represents there are no restrictions
upon the transfer of any of the shares of securities pledged as Collateral
hereunder, other than may appear on the face of the share certificates, and that
the Pledgor has the right to transfer all such shares free of any encumbrances
and without obtaining the consents of any other shareholders.
4. General.
4.1 Each reference herein to the Bank shall be deemed to include its
successors and assigns, and each reference to the Pledgor shall be deemed to
include the heirs, administrators, legal representatives, successors and assigns
of the Pledgor, all of whom are bound by the provisions hereof.
4.2 The term "Pledgor" as used herein shall, if this instrument is
signed by more than one party, mean, unless this Agreement states otherwise or
unless the context otherwise requires, the "Pledgor and each of them" and each
and every undertaking shall be their joint and several undertaking, except that
the pledge of the Collateral shall be by each of the Pledgors in its several
respective properties. If any of the Pledgors shall be a partnership, the
agreements and obligations of the Pledgor herein contained shall remain in force
and applicable notwithstanding any changes in the individuals composing the
partnership; and the term "Pledgor" shall include any alternative or successive
partnerships, but predecessor partnerships and their partners shall not thereby
be released from any obligation or liability. If the Pledgor is a corporation,
it represents that the officer signing on its behalf has been duly authorized to
execute this Agreement for and on behalf of the corporation by its board of
directors and stockholders.
4.3 No delay on the part of the Bank in exercising any rights
hereunder or failure to exercise the same shall operate as a waiver of such
rights; no notice to or demand on the Pledgor shall be deemed to be a waiver of
any obligations of the Pledgor or of the right of the Bank to take other or
further action without notice or demand as provided herein. In any event, no
modification or waiver of the provisions hereof will be effective unless in
writing and signed by the Bank, nor shall any waiver be applicable except in the
specific instance or matter for which given.
4.4 In addition to and not in limitation of any other authority
granted hereunder, the Pledgor hereby appoints the Bank as his attorney-in-fact
to arrange for the transfer of the deposited shares on the books of the
companies represented thereby.
4.5 Each provision of this Agreement shall be interpreted in
accordance with and in all respects governed by the laws of the Commonwealth of
Massachusetts, and should any portion of this Agreement be declared invalid for
any reason, such declaration shall have no effect upon the remaining portions of
this Agreement.
4.6 Any notice given by the Pledgor shall be effective upon actual
receipt by an officer of the Bank at the Bank's address; any notice the Bank may
elect to give hereunder shall be effective when deposited in the United States
mail, return receipt requested, postage prepaid, and addressed to the Pledgor at
the address appearing on the books and records of the Bank for the Pledgor.
4.7 PLEDGOR AND BANK (BY ACCEPTANCE OF THIS AGREEMENT) MUTUALLY
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY
JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY COLLATERAL DOCUMENTS EXECUTED
OR CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY RELATED HERETO, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE BANK RELATING TO THE
ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF THE COLLATERAL DOCUMENTS, AND
AGREE THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS
PROHIBITED BY LAW, EACH OF THE BORROWERS HEREBY WAIVES ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. PLEDGOR CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE BANK
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER CONSTITUTES A
MATERIAL INDUCEMENT FOR THE BANK TO ACCEPT THIS AGREEMENT AND MAKE THE LOANS
EVIDENCED BY THE NOTES.
4.8 All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, the Pledgor has caused these presents to be executed
as a sealed instrument as of the date first above written.
FIBERCORE, INC.
___________________________ By: _________________________
Witness Name:
Title:
Accepted by FLEET NATIONAL BANK as of the 20th day of December, 2000.
By:___________________________________
Name:
Title:
EXHIBIT A
All of the following property, together with all dividends and distributions
pertaining thereto and all substitutions therefor and cash proceeds thereof:
ALL SHARES OF STOCK NOW OR HEREAFTER
IN THE NAME OF FIBERCORE, INC.,
IN ANY SUBSIDIARY (AS SUCH TERM IS DEFINED IN THE AGREEMENT)
OF FIBERCORE, INC.,
INCLUDING ALL SHARES OF STOCK IN ________________
NOW OR HEREAFTER IN THE NAME OF
FIBERCORE, INC.
EVIDENCED BY THE FOLLOWING STOCK CERTIFICATE(S):
