PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of March 3, 1997 between XXXXXXX
XXXXXX AND XXXXXX XXXXXX (the "Pledgors") and XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK (the "Bank").
WHEREAS, the Bank may extend loans or other credit
facilities or financial accommodations (collectively, the
"Loans") to or on behalf of either or both of the Pledgors;
NOW, THEREFORE, to induce the Bank to extend the Loans and
to secure their obligations (collectively, the "Secured
Obligations") with regard thereto, for good consideration, the
receipt and adequacy of which are hereby acknowledged, the
Pledgors and the Bank agree as follows:
1. As collateral security for the performance of the
Secured Obligations, the Pledgors hereby pledge and assign to the
Bank, and grant to the Bank a security interest in, all assets
and property now and hereafter maintained on deposit by the
Pledgors in Custody Account No. 89318 at the Bank (such assets
and property being hereinafter referred to as the "Collateral"
and such account being hereinafter referred to as the "Collateral
Account"). Upon the consent of the Bank the Pledgors may from
time to time withdraw portions of the Collateral and substitute
other property acceptable to the Bank therefor, which substituted
property shall then be deemed to constitute a portion of the
Collateral, provided, that the Pledgors shall at all times
maintain Collateral in the Collateral Account having a lending
value, as determined by the Bank in its sole discretion, at least
equal to the Dollar amount of the Secured Obligations.
2. A. The Pledgors represent and warrant that all of the
contents of the Collateral Account are and will be validly and
duly pledged to the Bank in accordance with law, and agree to
defend the Bank's right, title, lien and security interest in and
to the Collateral against the claims and demands of all persons
whomsoever. The Pledgors also represent and warrant to the Bank
that they have, and will have upon deposit with the Bank, title
to all of the contents of the Collateral Account, free and clear
of all claims, mortgages, pledges, liens, encumbrances and
security interests of every nature whatsoever, and that no
consent or approval of any governmental or regulatory authority,
or of any securities exchange, was or is necessary to the
validity of this pledge.
B. The Pledgors will faithfully preserve and protect the
Bank's security interest in the Collateral and will do all such
acts and things and execute and deliver all such documents and
instruments, including without limitation further pledges,
assignments, financing statements and continuation statements, as
the Bank in its sole discretion may reasonably deem necessary or
advisable from time to time in order to preserve, protect and
perfect such security interest. The Pledgors hereby authorize
the Bank to sign and file financing and continuation statements
without the signature of the Pledgors.
C. The Pledgors represent and warrant that no liens,
security interests or adverse claims other than in favor of the
Bank exist upon any of the contents of the Collateral Account.
The Pledgors will not permit any liens, security interests or
adverse claims other than in favor of the Bank to exist upon any
of the contents of the Collateral Account. The Pledgors shall not
enter into any agreement imposing any restrictions on the
transferability of the Collateral or that would otherwise lessen
in any way its value as collateral.
3. If at any time the Secured Obligations shall be in
default the Bank may cause all or any of the Collateral to be
transferred to or registered in its name or the name of its
nominee or nominees.
4. In the event the Secured Obligations shall be in default
(i) all dividends, interest and other distributions at any time
and from time to time declared or paid upon any of the Collateral
shall become part of the Collateral and (ii) the Bank shall be
entitled to exercise all voting power with regard to the
Collateral.
5. If any of the Secured Obligations shall not be performed
forthwith as and when due in accordance with their terms, the
Bank, without obligation to resort to other security, shall have
the right at any time and from time to time to sell, resell,
assign and deliver, in its discretion, all or any of the
Collateral, in one or more parcels at the same or different
times, and all right, title and interest, claim and demand
therein and right of redemption thereof, on any securities
exchange on which the Collateral or any of it may be listed, or
at public or private sale, for cash, upon credit or for future
delivery, and in connection therewith the Bank may grant options,
the Pledgors hereby waiving and releasing any and all equity or
right of redemption. If any of the Collateral is sold by the
Bank upon credit or for future delivery, the Bank shall not be
liable for the failure of the purchaser to purchase or pay for
the same and, in the event of any such failure, the Bank may
resell such Collateral. In no event shall the Pledgors be
credited with any part of the proceeds of sale of any Collateral
until cash payment thereof has actually been received by the
Bank. In addition, should any portion of the Collateral consist
of a time deposit or deposits with a financial institution, the
Bank may terminate such deposit or deposits prior to the maturity
thereof and any penalties payable in connection therewith shall
be for the sole account of the Pledgors.
6. No demand, advertisement or notice, all of which are
hereby expressly waived, shall be required in connection with any
sale or other disposition of any part of the Collateral which
threatens to decline speedily in value or which is of a type
customarily sold on a recognized market; otherwise the Bank shall
give the Pledgors at least five business days' prior notice of
the time and place of any public sale and of the time after which
any private sale or other disposition is to be made, which notice
the Pledgors agree is reasonable, all other demands,
advertisements and notices being hereby waived. The Bank shall
not be obligated to make any sale of Collateral if it shall
determine not to do so, regardless of the fact that notice of
sale may have been given. The Bank may, without notice or
publication, adjourn any public or private sale or cause the same
to be adjourned from time to time by announcement at the time and
place fixed for sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned.
In the case of all sales of Collateral, public or private, the
Pledgors shall pay all costs and expenses of every kind for sale
or delivery, including brokers' and attorneys' fees, and after
deducting such costs and expenses from the proceeds of sale, the
Bank shall apply any residue to the payment of principal,
interest and other amounts owed with regard to the Secured
Obligations. The balance, if any, remaining after payment in
full of all such amounts shall be paid to the Pledgors, subject
to any duty of the Bank imposed by law to the holder of any
subordinate security interest in the Collateral known to the
Bank.
7. The Pledgors recognize that the Bank may be unable to
effect a public sale of all or a part of the Collateral by reason
of certain prohibitions contained in the Securities Act of 1933,
as amended, as now or hereafter in effect, or in applicable Blue
Sky or other state securities laws, as now or hereafter in
effect, but may be compelled to resort to one or more private
sales to a restricted group of purchasers who will be obliged to
agree, among other things, to acquire such Collateral for their
own account, for investment and not with a view to the
distribution or resale thereof. The Pledgors agree that private
sales so made may be at prices and other terms less favorable to
the seller than if such Collateral were sold at public sales, and
that the Bank has no obligation to delay sale of any such
Collateral for the period of time necessary to permit the issuer
of such Collateral, even if such issuer would agree, to register
such Collateral for public sale under such applicable securities
laws. The Pledgors agree that private sales made under the
foregoing circumstances shall be deemed to have been made in a
commercially reasonable manner.
8. The remedies provided herein in favor of the Bank shall
not be deemed exclusive, but shall be cumulative, and shall be in
addition to all other remedies in favor of the Bank existing at
law or in equity.
9. The Bank shall have the right, for and in the name,
place and stead of the Pledgors, to execute endorsements,
assignments or other instruments of conveyance or transfer with
respect to all or any of the Collateral.
10. The Bank shall have no duty as to the collection or
protection of the Collateral or any income thereon or as to the
preservation of any rights pertaining thereto, beyond the safe
custody of any thereof actually in its possession. With respect
to any maturities, calls, conversions, exchanges, redemptions,
offers, tenders or similar matters relating to any of the
Collateral (herein called "events"), the Bank's duty shall be
fully satisfied if (i) the Bank exercises reasonable care to
ascertain the occurrence and to give reasonable notice to the
Pledgors of any events applicable to any Collateral which is
registered and held in the name of the Bank or its nominee, (ii)
the Bank gives the Pledgors reasonable notice of the occurrence
of any events, of which the Bank has received actual knowledge,
as to any securities which are in bearer form or are not
registered and held in the name of the Bank or its nominee (the
Pledgors agreeing to give the Bank reasonable notice of the
occurrence of any events applicable to any securities in the
possession of the Bank of which the Pledgors have received
knowledge), and (iii) in the exercise of its sole discretion (a)
the Bank endeavors to take such action with respect to any of the
events as the Pledgors may reasonably and specifically request in
writing in sufficient time for such action to be evaluated and
taken or (b) if the Bank determines that the action requested
might adversely affect the value of the Collateral as collateral,
the collection of the Loans, or otherwise prejudice the interests
of the Bank, the Bank gives reasonable notice to the Pledgors
that any such requested action will not be taken and if the Bank
makes such determination or if the Pledgors fail to make such
timely request, the Bank takes such other action as it deems
advisable in the circumstances. Except as hereinabove
specifically set forth, the Bank shall have no further obligation
to ascertain the occurrence of, or to notify the Pledgors with
respect to, any events and shall not be deemed to assume any such
further obligation as a result of the establishment by the Bank
of any internal procedures with respect to any securities in its
possession. The Pledgors release the Bank from any claims,
causes of action and demands at any time arising out of or with
respect to this Agreement, the Collateral and/or any actions,
taken or omitted to be taken by the Bank with respect thereto,
and the Pledgors hereby agree to hold the Bank harmless from and
with respect to any and all such claims, causes of action and
demands.
11. The Pledgors hereby irrevocably appoint the Bank as
their attorney-in-fact for the purpose of carrying out the
provisions of this Agreement and taking any action and executing
any instrument which either may deem necessary or advisable to
accomplish the purposes hereof. Without limiting the generality
of the foregoing, the Bank shall have the right and power to
receive, endorse and collect all checks and other orders for the
payment of money made payable to the Pledgors representing any
interest or dividend or other distribution payable in respect of
the Collateral or any part thereof and to give full discharge for
the same.
12. No delay on the part of the Bank in exercising any of
its options, powers or rights, or partial or single exercise
thereof, shall constitute a waiver thereof.
13. Upon the repayment in full of all principal, interest
and other amounts that may be payable with regard to the Loans
and the Bank's having determined that no contingent obligations
of either Pledgors that it wishes to remain secured hereunder
shall exist, the Pledgors shall be entitled to the return of all
of the Collateral and of all other property and cash which have
not been used or applied toward the payment of such principal,
interest and other amounts free and clear of all liens in favor
of the Bank or any encumbrances imposed by the Bank. Except as
aforesaid, the assignment by the Bank to the Pledgors of such
Collateral and other property shall be without representation or
warranty of any nature whatsoever and wholly without recourse.
14. Any notice, demand or service of process upon the
Pledgors shall be deemed to have been sufficiently given for all
purposes thereof if mailed, postage prepaid, by registered or
certified mail, return receipt requested, or if delivered, to the
Pledgors at the address specified below, or at such other address
as the Pledgors may theretofore have designated in writing and
given in like manner to the Bank.
15. Any waiver, permit, consent or approval of any kind or
character on the part of the Bank of any breach or default under
this Agreement or any such waiver of any provision or condition
of this Agreement must be in writing and shall be effective only
to the extent specifically set forth in such writing.
16. This Agreement and the rights and obligations of the
Bank and the Pledgors hereunder shall be construed in accordance
with and governed by the laws of the State of New York, cannot be
changed orally and shall bind and inure to the benefit of the
Pledgors and the Bank and their respective successors and
assigns, all subsequent holders of the Secured Obligations and
to the Pledgors' heirs, executors and legal representatives. The
Pledgors hereby submit to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New
York and of any New York State Court sitting in New York City for
purposes of all legal proceedings arising out of or relating to
this Agreement or any agreement received by the Bank in
connection herewith. The Pledgors irrevocably waive, to the
fullest extent permitted by law, any objection which they may now
or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an
inconvenient forum. The Pledgors hereby irrevocably waive any
and all right to trial by jury in any legal proceeding arising
out of or relating to this Agreement or any agreement received by
the Bank in connection herewith.
17. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all
of which taken together shall constitute but one and the same
instrument.
18. This Agreement replaces all prior agreements between
the Pledgors and the Bank relating to the Collateral contained in
any promissory note delivered to the Bank by the Pledgors.
19. The Pledgors agree to pay the Bank on demand all costs,
including legal fees, incurred by the Bank in connection with the
administration and enforcement of this Agreement.
20. The Pledgors shall be jointly and severally liable.
IN WITNESS WHEREOF, the Pledgors and the Bank have caused
this Agreement to be duly executed as of the day and year first
above written.
_____________________________
Xxxxxxx Xxxxxx
_____________________________
Xxxxxx Xxxxxx
Address:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: _________________________
Xxxxxxx X. Xxxxxxxx
Vice President
Address:
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx