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EXHIBIT 10.39
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT made as of this 29th day of October, 1996,
between KTI, INC., with its principal office and place of business at 0000
Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Pledgor"), and KEY BANK OF
NEW YORK, a New York state banking corporation with its principal office at 00
Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Pledgee").
Pledgor has entered into a Loan and Security Agreement dated of even
date herewith between the Pledgor and the Pledgee (the "Loan Agreement").
In order to induce Pledgee to make the advances provided for in the
Loan Agreement, Pledgor wishes to grant security and assurance to Pledgee in
order to secure its performance of the obligations under the Loan Agreement and
Note (as defined in the Loan Agreement), and to that effect to pledge to Pledgee
all of the issued and outstanding capital stock of KTI Environmental Group,
Inc., a New Jersey corporation (the "Pledged Shares").
NOW, THEREFORE, in consideration of the foregoing and for $1.00 and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto mutually agree as follows:
1. Security Interest. As security for the obligations under the Note,
including any renewals or extensions thereof, Pledgor hereby delivers, pledges
and assigns to Pledgee and creates in Pledgee for its benefit a first security
interest in, all of its right, title and interest in and to all of the Pledged
Shares together with all rights and privileges of Pledgor with respect thereto,
all proceeds, income and profits thereof and all property received in addition
thereto, in exchange thereof or in substitution therefor (the "Collateral").
2. Stock Dividends, Options, or Other Adjustments. Prior to the full
payment and performance of the obligations, Pledgee shall receive, as
Collateral, any and all additional shares of stock or any other property of any
kind distributable on or by reason of the Collateral pledged hereunder, whether
in the form of stock dividends, warrants, partial liquidation, conversion,
prepayments or redemptions (in whole or in part) liquidation or otherwise, with
the sole exception of cash dividends or cash interest payments, as the case may
be. For the term of this Agreement the Pledged Shares shall be held by Pledgee.
If any additional shares of capital stock, instruments, or other property
against which a security interest can only be perfected by possession by
Pledgee, which are distributable on or by reason of the Collateral pledged
hereunder, shall come into the possession or control of Pledgor, Pledgor shall
hold or control and forthwith transfer and deliver the same to Pledgee subject
to the provisions of this Agreement.
3. Delivery of Share Certificates; Stock Powers. Instruments and stock
certificates representing the Collateral are being delivered to Pledgee
simultaneously herewith together with stock powers duly executed in blank by
Pledgor. Pledgor shall promptly deliver to Pledgee, or cause the corporations or
other entity issuing the Collateral to deliver directly to Pledgee, share
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certificates or other documents representing Collateral acquired or received
after the date of this Agreement with a stock power duly executed by Pledgor. If
at any time Pledgee notifies Pledgor that additional stock powers endorsed in
blank held by Pledgee with respect to the Collateral are required, Pledgor shall
promptly execute in blank and deliver such stock powers as Pledgee may request.
4. Power of Attorney. Pledgor hereby constitutes and irrevocably
appoints Pledgee, with full power of substitution and revocation by Pledgee, as
Pledgor's true and lawful attorney-in-fact, to affix to certificates and
documents representing the Collateral the stock powers delivered with respect
thereto, to transfer or cause the transfer of the Collateral, or any part
thereof on the books of the corporation or other entity issuing the same, to the
name of Pledgee or Pledgee's nominee and thereafter exercise as to such
Collateral all the rights, power and remedies of an owner. The power of attorney
granted pursuant to this Agreement and all authority hereby conferred are
granted and conferred solely to protect Pledgee's interest in the Collateral and
shall not impose any duty upon Pledgee to exercise any power. This power of
attorney shall be irrevocable as one coupled with an interest prior to the
payment in full and/or satisfaction and termination of all obligations to
Pledgee.
5. Inducing Representations of Pledgor. Pledgor represents and warrants
to Pledgee with respect to its collateral that:
(a) Pledgor is the sole legal and beneficial owner of, and has
good and marketable title to, the Collateral, free and clear of all pledges,
liens, security interests and other encumbrances and restrictions on the
transfer and assignment thereof, other than the security interest created by
this Agreement, and Pledgor has the requisite right and authority to execute
this Agreement and to pledge the Collateral to Pledgee as provided for herein;
(b) There are no outstanding options, warrants or other
agreements with respect to the Collateral;
(c) The Collateral has been validly issued and is fully paid
and non-assessable and is not subject to any charter, by-law, statutory,
contractual or other restrictions governing its issuance, transfer, ownership or
control, except that sale may be limited in the absence of an effective
registration under the Securities Act of 1933, as amended, and under applicable
state securities laws or of an opinion of counsel satisfactory to the issuer
that the sale or transfer is exempt from registration under said act and laws.
(d) Any consent, approval or authorization of or designation
or filing with any authority on the part of Pledgor which is required in
connection with the pledge and security interest granted under this Agreement
has been obtained or effected;
(e) The execution and delivery of this Agreement by Pledgor,
and the performance by Pledgor of its obligations hereunder, will not result in
a violation of the certificate of incorporation, by-laws, or of any mortgage,
indenture, contract, instrument,
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judgment, decree, order, statute, rule or regulation to which Pledgor is
subject;
(f) Pledgor has delivered to Pledgee the Pledged Shares duly
endorsed in blank or accompanied by an assignment or assignments sufficient to
transfer title thereto and/or the local equivalent necessary to perfect the
security interest; and
(g) The Pledged shares constitute all the issued and
outstanding capital stock of the issuers thereof.
6. Obligations of Pledgor. Pledgor further covenants to Pledgee with
respect to the Collateral that:
(a) Pledgor will not sell, transfer or convey any interest in,
or suffer or permit any lien or encumbrance to be created upon or with respect
to, any of the Collateral (other than as created under this Agreement) during
the term of the pledge established hereby; and
(b) Pledgor will, at its own expense, at any time and from
time to time at Pledgee's reasonable request, do, make, procure, execute and
deliver all acts, things, writings, assurances and other documents as may be
proposed by Pledgee to further enhance, preserve, establish, demonstrate or
enforce Pledgee's rights, interests and remedies created by, provided in or
emanating from this Agreement.
7. Rights of Pledgor. So long as no Event of Default has occurred and
is continuing (as used herein "Event of Default" shall mean the occurrence of
any Event of Default under the Note, Loan Agreement, any note, document or
instrument delivered or to be delivered pursuant or in connection with the Loan
Agreement (collectively, the "Loan Documents") or the failure of Pledgor to
perform any obligation, or the breach of any covenant, under this Agreement),
and so long as Pledgee has not transferred the Collateral to its own name under
Section 4 hereof:
(a) Pledgor shall be entitled to receive and retain any cash
dividends or cash interest payments paid on the Collateral; and
(b) Pledgor shall be entitled to vote or consent with respect
to the Collateral in any manner not inconsistent with this Agreement, the Note
and Security Agreement. Pledgor hereby grants to Pledgee an irrevocable proxy to
vote the Collateral which proxy shall be effective immediately upon the
occurrence of any Event of Default. Upon request of Pledgee, Pledgor agrees to
deliver to Pledgee such further evidence of such irrevocable proxy as Pledgee
may request.
8. Rights of Pledgee. At any time after the occurrence of an Event of
Default, and so long as such Event of Default continues, without notice, Pledgee
may:
(a) Cause the Collateral to be transferred to its name or to
the name of its nominee or nominees and thereafter exercise as to such
Collateral all of the rights, powers and
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remedies of an owner;
(b) Collect by legal proceedings or otherwise all dividends,
interest, principal payments, capital distributions and other sums now or
hereafter payable on account of the Collateral, and hold the same as part of the
Collateral, or apply the same to any of the obligations in such manner and order
as Pledgee may decide in its sole discretion;
(c) Enter into any extension, subordination, reorganization,
deposit, merger, or consolidation agreement, or any other agreement relating to
or affecting the Collateral, and in connection therewith deposit or surrender
control of the Collateral thereunder, and accept other property in exchange
therefor and hold and apply such property or money so received in accordance
with the provisions hereof; and
(d) Discharge any taxes, liens, security interests or other
encumbrances levied or placed on the Collateral, pay for the maintenance and
preservation of the Collateral, or pay for insurance on the Collateral; the
amount of such payments, plus any and all fees, costs and expenses of Pledgee
(including attorneys' fees and disbursements), in connection therewith, shall,
at Pledgee's option, be reimbursed by Pledgor on demand or added to the
obligations secured hereby.
9. Event of Default; Remedies. Upon the occurrence and continuance of
an Event of Default as hereinbefore defined:
(a) In addition to all the rights and remedies of a secured
party under the Uniform Commercial Code in effect in the State of New York at
that time, Pledgee shall have the right, and without demand or performance or
other demand, advertisement or notice of any kind, except as specified below, to
or upon the Pledgor or any other person (all and each of which demands,
advertisements and/or notices are hereby expressly waived to the extent
permitted by law), to proceed forthwith to collect, receive, appropriate and
realize upon the Collateral, or any part thereof and to proceed forthwith to
sell, assign, give an option or options to purchase, contract to sell, or
otherwise dispose of and deliver the Collateral or any part thereof in one or
more parcels at public or private sale or sales at any stock exchange, broker's
board or at any of Pledgee's offices or elsewhere at such prices and on such
terms (including, without limitation, a requirement that any purchaser of all or
any part of the Collateral shall be required to purchase any securities
constituting the Collateral solely for investment and without any intention to
make a distribution thereof) as Pledgee deems to be commercially reasonable. If
any notification of intended disposition of the Collateral is required by law,
such notification shall be deemed reasonable and properly given if mailed,
postage prepaid, at least ten (10) days before any such disposition to Pledgor's
address indicated above. Any disposition of the Collateral or any part thereof
may be for cash or on credit or for future delivery without assumption of any
credit risk, with the right to Pledgee to purchase all or any part of the
Collateral so sold at any such sale or sales, public or private, free of any
equity or right of redemption in the Pledgor, which right or equity is hereby
expressly waived or released by the Pledgor.
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(b) All of the Pledgee's rights and remedies, including but
not limited to the foregoing, shall be cumulative and not exclusive and shall be
enforceable alternatively, successively or concurrently as Pledgee may deem
expedient.
(c) Pledgee may elect to obtain the advice of any independent
nationally-known investment banking firm with respect to the method and manner
of sale or other disposition of any of Collateral, the best price reasonably
obtainable therefor, the consideration of cash and/or credit terms, or any other
details concerning such sale or disposition. Pledgee, in its sole discretion,
may elect to sell on such credit terms which it deems reasonable. The sale of
any of the Collateral on credit terms shall not relieve Pledgor or the Borrowers
of their liability under any of the Obligations until the full purchase price
for the Collateral has been paid in full. All payments received by Pledgee in
respect of a sale of Collateral shall be applied to the obligations in the
manner provided in Section 10 of this Agreement, as and when such payments are
received.
(d) Pledgor recognizes that Pledgee may be unable to effect a
public sale of all or a part of the Collateral by reason of certain prohibitions
contained in any applicable securities law, but may be compelled to resort to
more private sales to a restricted group of purchases who will be obliged to
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view for the distribution or resale thereof. Pledgor
agrees that private sales so made may be at prices and on other terms less
favorable to the seller than if the Collateral were sold at public sale, and
that Pledgee has no obligation to delay the sale of any Collateral for the
period of time necessary to permit the registration of the Collateral for public
sale under the Act. Pledgor agrees that a private sale or sales made under the
foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
(e) If any consent, approval or authorization of any state,
municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or other disposition of the Collateral, or any
partial disposition of the Collateral, Pledgor will execute all such
applications and other instruments as may be required in connection with
securing any such consent, approval or authorization, and will otherwise use its
best efforts to secure the same. Pledgor further agrees to use its best efforts
to secure such sale or other disposition of the Collateral as Pledgee may deem
necessary pursuant to the terms of this Agreement.
(f) Upon any sale or other disposition, Pledgee shall have the
right to deliver, assign and transfer to the purchaser thereof the Collateral so
sold or disposed of. Each purchaser at any such sale or other disposition
(including Pledgee) shall hold the Collateral free from any claim or right of
whatever kind, including any equity or right of redemption of Pledgor. Pledgor
specifically waives all rights of redemption, stay or appraisal which it had or
may have under any rule of law or statute now existing or hereafter adopted.
(g) Pledgee shall not be obligated to make any sale or other
disposition, unless the terms thereof shall be satisfactory to it. Pledgee may,
without notice or publication, adjourn
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any private or public sale, and, upon ten (10) days' prior notice to Pledgor,
hold such sale at any time or place to which the same may be so adjourned. In
case of any sale of all or any part of the Collateral, on credit or future
delivery, the Collateral so sold may be retained by Pledgee until the selling
price is paid by the purchaser thereof, but Pledgee shall incur no liability in
case of the failure of such purchaser to take up and pay for the property so
sold and, in case of any such failure, such property may again be sole as herein
provided.
10. Disposition of Proceeds.
(a) The proceeds of any sale or disposition of all or any part of
the Collateral shall be applied by Pledgee in the following order:
(i) to the payment in full of the costs and expenses of such
sale or sales, collections, and the protection, declaration and enforcement of
any security interest granted hereunder, including the compensation of Pledgee's
agents and attorneys;
(ii) to the payment of the obligations; and
(iii) to the payment to Pledgor of any surplus then remaining
from such proceeds, subject to the rights of any holder of a lien on the
Collateral of which Pledgee has actual notice.
(b) In the event that the proceeds of any sale or other disposition
are insufficient to cover the amount of the obligations, Pledgor shall remain
liable for any deficiency.
11. Termination. This Agreement shall continue to full force and effect
until all obligations shall have been paid in full and satisfied and the Loan
Agreement shall have been terminated. Subject to any sale or other disposition
by Pledgee of the Collateral or any part thereof pursuant to this Agreement, the
Collateral shall be returned to Pledgor upon full payment, satisfaction and
termination of all of the obligations of Pledgor.
12. Expenses of Pledgee. All expenses (including Pledgee's fees and
charges and fees and disbursements of counsel) incurred by Pledgee in connection
with the perfection and continuation of the security interest granted hereunder
and any actual or attempted sale, exchange of, or any enforcement, collection,
compromise or settlement respecting, the Collateral, or any other action taken
by Pledgee hereunder whether directly or as attorney-in-fact pursuant to a power
of attorney or other authorization therein conferred, for the purpose of
satisfaction of the liability of Borrowers and Pledgor for failure to pay the
obligations or as additional amounts owing by Pledgor to cover Pledgee's costs
of acting against the Collateral, shall be deemed an obligation of Pledgor for
all purposes of this Agreement and Pledgee may apply the Collateral to payment
of or reimbursement of itself and the Bank for such liability.
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13. General Provisions.
(a) Pledgee or its designee is hereby appointed the
attorney-in-fact of Pledgor for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument which Pledgee
reasonably may deem necessary and advisable to accomplish the purposes hereof,
which appointment as attorney-in-fact is irrevocable as one coupled with an
interest.
(b) Pledgee and its assigns shall have no obligation in respect to
the Collateral, except to use reasonable care in holding the Collateral and to
hold and dispose of the same in accordance with the terms of this Agreement.
(c) Any notice or other communication given hereunder shall be in
writing and sent by registered or certified mail, postage prepaid, as follows;
If to Pledgor:
KTI, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq., General Counsel
With a copy thereof to:
KTI, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxx, President
If to Pledgee:
Key Bank of New York
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx, Vice President
With a copy thereof to:
Crane, Kelley, Xxxxxx & Parente
00 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
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Either party hereto may change its address for notice by giving notice thereof
to the other party in accordance with the provisions of this paragraph.
(d) NO FAILURE ON THE PART OF PLEDGEE TO EXERCISE, AND NO
DELAY IN EXERCISING, ANY RIGHT, POWER OR REMEDY HEREUNDER SHALL OPERATE AS A
WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL EXERCISE BY PLEDGEE OF ANY
RIGHT,POWER OR REMEDY HEREUNDER PRECLUDE ANY OTHER OR FUTURE EXERCISE THEREOF,
OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR REMEDY. THE REMEDIES HEREIN
PROVIDED ARE CUMULATIVE AND ARE NOT EXCLUSIVE OF ANY REMEDIES PROVIDED BY LAW OR
ANY OTHER AGREEMENT. THE REPRESENTATIONS, COVENANTS AND AGREEMENTS OF PLEDGOR
HEREIN CONTAINED SHALL SURVIVE THE DATE HEREOF. NEITHER THIS AGREEMENT NOR THE
PROVISIONS HEREOF CAN BE CHANGED, WAIVED OR TERMINATED ORALLY. THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR
RESPECTIVE SUCCESSORS, LEGAL REPRESENTATIVES AND ASSIGNS. THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first above written.
KTI, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------
Name: Xxxxxx X. Xxxxx
Title: President
KEY BANK OF NEW YORK
By: /s/ Xxxx Xxxxxxx
----------------------
Name: Xxxx Xxxxxxx
Title: Vice President
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STATE OF NEW JERSEY )ss.:
COUNTY OF XXXXXX )
On this 29th day of October, 1996, before me personally came Xxxxxx X.
Xxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at 00 Xxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx, that he is the President of KTI,
Inc., the corporation described in, and which executed the above instrument; and
that he signed his name thereto by like order of the Board of Directors of said
corporation.
/s/ Xxxxxxx X. Xxxxxx
-----------------------
Notary Public
XXXXXXX X. XXXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Sept. 25, 0000
XXXXX XX XXX XXXXXX )ss.:
COUNTY OF XXXXXX )
On this 29th day of October, 1996, before me personally came Xxxx
Xxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at _________________, New York, that he is the Vice President of Key
Bank of New York, the corporation described in, and which executed the above
instrument; and that he signed his name thereto by like order of the Board of
Directors of said corporation.
---------------------
Notary Public
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PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT made as of this 29th day of October, 1996,
between KTI ENVIRONMENTAL GROUP, INC., with its principal office and place of
business at 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Pledgor"),
and KEY BANK OF NEW YORK, a New York state banking corporation with its
principal office at 00 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Pledgee").
Pledgor has entered into a Loan and Security Agreement dated of even
date herewith between the Pledgor and the Pledgee (the "Loan Agreement").
In order to induce Pledgee to make the advances provided for in the
Loan Agreement, Pledgor wishes to grant security and assurance to Pledgee in
order to secure its performance of the obligations under the Loan Agreement and
Note (as defined in the Loan Agreement), and to that effect to pledge to Pledgee
all of the issued and outstanding capital stock of Xxxx Technologies, a New
Jersey corporation, KTI Limited Partners, Inc., a Delaware corporation and KTI
Operations Inc., a Delaware corporation (collectively, the "Pledged Shares").
NOW, THEREFORE, in consideration of the foregoing and for $1.00 and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto mutually agree as follows:
1. Security Interest. As security for the obligations under the Note,
including any renewals or extensions thereof, Pledgor hereby delivers, pledges
and assigns to Pledgee and creates in Pledgee for its benefit a first security
interest in, all of its right, title and interest in and to all of the Pledged
Shares together with all rights and privileges of Pledgor with respect thereto,
all proceeds, income and profits thereof and all property received in addition
thereto, in exchange thereof or in substitution therefor (the "Collateral").
2. Stock Dividends, Options, or Other Adjustments. Prior to the full
payment and performance of the obligations, Pledgee shall receive, as
Collateral, any and all additional shares of stock or any other property of any
kind distributable on or by reason of the Collateral pledged hereunder, whether
in the form of stock dividends, warrants, partial liquidation, conversion,
prepayments or redemptions (in whole or in part) liquidation or otherwise, with
the sole exception of cash dividends or cash interest payments, as the case may
be. For the term of this Agreement the Pledged Shares shall be held by Pledgee.
If any additional shares of capital stock, instruments, or other property
against which a security interest can only be perfected by possession by
Pledgee, which are distributable on or by reason of the Collateral pledged
hereunder, shall come into the possession or control of Pledgor, Pledgor shall
hold or control and forthwith transfer and deliver the same to Pledgee subject
to the provisions of this Agreement.
3. Delivery of Share Certificates; Stock Powers. Instruments and stock
certificates representing the Collateral are being delivered to Pledgee
simultaneously herewith together with stock powers duly executed in blank by
Pledgor. Pledgor shall promptly deliver to Pledgee, or
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cause the corporations or other entity issuing the Collateral to deliver
directly to Pledgee, share certificates or other documents representing
Collateral acquired or received after the date of this Agreement with a stock
power duly executed by Pledgor. If at any time Pledgee notifies Pledgor that
additional stock powers endorsed in blank held by Pledgee with respect to the
Collateral are required, Pledgor shall promptly execute in blank and deliver
such stock powers as Pledgee may request.
4. Power of Attorney. Pledgor hereby constitutes and irrevocably
appoints Pledgee, with full power of substitution and revocation by Pledgee, as
Pledgor's true and lawful attorney-in-fact, to affix to certificates and
documents representing the Collateral the stock powers delivered with respect
thereto, to transfer or cause the transfer of the Collateral, or any part
thereof on the books of the corporation or other entity issuing the same, to the
name of Pledgee or Pledgee's nominee and thereafter exercise as to such
Collateral all the rights, power and remedies of an owner. The power of attorney
granted pursuant to this Agreement and all authority hereby conferred are
granted and conferred solely to protect Pledgee's interest in the Collateral and
shall not impose any duty upon Pledgee to exercise any power. This power of
attorney shall be irrevocable as one coupled with an interest prior to the
payment in full and/or satisfaction and termination of all obligations to
Pledgee.
5. Inducing Representations of Pledgor. Pledgor represents and warrants
to Pledgee with respect to its collateral that:
(a) Pledgor is the sole legal and beneficial owner of, and has
good and marketable title to, the Collateral, free and clear of all pledges,
liens, security interests and other encumbrances and restrictions on the
transfer and assignment thereof, other than the security interest created by
this Agreement, and Pledgor has the requisite right and authority to execute
this Agreement and to pledge the Collateral to Pledgee as provided for herein;
(b) There are no outstanding options, warrants or other
agreements with respect to the Collateral;
(c) The Collateral has been validly issued and is fully paid
and non-assessable and is not subject to any charter, by-law, statutory,
contractual or other restrictions governing its issuance, transfer, ownership or
control, except that sale may be limited in the absence of an effective
registration under the Securities Act of 1933, as amended, and under applicable
state securities laws or of an opinion of counsel satisfactory to the issuer
that the sale or transfer is exempt from registration under said act and laws.
(d) Any consent, approval or authorization of or designation
or filing with any authority on the part of Pledgor which is required in
connection with the pledge and security interest granted under this Agreement
has been obtained or effected;
(e) The execution and delivery of this Agreement by Pledgor,
and the performance by Pledgor of its obligations hereunder, will not result in
a violation of the
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certificate of incorporation, by-laws, or of any mortgage, indenture, contract,
instrument, judgment, decree, order, statute, rule or regulation to which
Pledgor is subject;
(f) Pledgor has delivered to Pledgee the Pledged Shares duly
endorsed in blank or accompanied by an assignment or assignments sufficient to
transfer title thereto and/or the local equivalent necessary to perfect the
security interest; and
(g) The Pledged shares constitute all the issued and
outstanding capital stock of the issuers thereof.
6. Obligations of Pledgor. Pledgor further covenants to Pledgee with
respect to the Collateral that:
(a) Pledgor will not sell, transfer or convey any interest in,
or suffer or permit any lien or encumbrance to be created upon or with respect
to, any of the Collateral (other than as created under this Agreement) during
the term of the pledge established hereby; and
(b) Pledgor will, at its own expense, at any time and from
time to time at Pledgee's reasonable request, do, make, procure, execute and
deliver all acts, things, writings, assurances and other documents as may be
proposed by Pledgee to further enhance, preserve, establish, demonstrate or
enforce Pledgee's rights, interests and remedies created by, provided in or
emanating from this Agreement.
7. Rights of Pledgor. So long as no Event of Default has occurred and
is continuing (as used herein "Event of Default" shall mean the occurrence of
any Event of Default under the Note, Loan Agreement, any note, document or
instrument delivered or to be delivered pursuant or in connection with the Loan
Agreement (collectively, the "Loan Documents") or the failure of Pledgor to
perform any obligation, or the breach of any covenant, under this Agreement),
and so long as Pledgee has not transferred the Collateral to its own name under
Section 4 hereof:
(a) Pledgor shall be entitled to receive and retain any cash
dividends or cash interest payments paid on the Collateral; and
(b) Pledgor shall be entitled to vote or consent with respect
to the Collateral in any manner not inconsistent with this Agreement, the Note
and Security Agreement. Pledgor hereby grants to Pledgee an irrevocable proxy to
vote the Collateral which proxy shall be effective immediately upon the
occurrence of any Event of Default. Upon request of Pledgee, Pledgor agrees to
deliver to Pledgee such further evidence of such irrevocable proxy as Pledgee
may request.
8. Rights of Pledgee. At any time after the occurrence of an Event of
Default, and so long as such Event of Default continues, without notice, Pledgee
may:
(a) Cause the Collateral to be transferred to its name or to
the name of its
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nominee or nominees and thereafter exercise as to such Collateral all of the
rights, powers and remedies of an owner;
(b) Collect by legal proceedings or otherwise all dividends,
interest, principal payments, capital distributions and other sums now or
hereafter payable on account of the Collateral, and hold the same as part of the
Collateral, or apply the same to any of the obligations in such manner and order
as Pledgee may decide in its sole discretion;
(c) Enter into any extension, subordination, reorganization,
deposit, merger, or consolidation agreement, or any other agreement relating to
or affecting the Collateral, and in connection therewith deposit or surrender
control of the Collateral thereunder, and accept other property in exchange
therefor and hold and apply such property or money so received in accordance
with the provisions hereof; and
(d) Discharge any taxes, liens, security interests or other
encumbrances levied or placed on the Collateral, pay for the maintenance and
preservation of the Collateral, or pay for insurance on the Collateral; the
amount of such payments, plus any and all fees, costs and expenses of Pledgee
(including attorneys' fees and disbursements), in connection therewith, shall,
at Pledgee's option, be reimbursed by Pledgor on demand or added to the
obligations secured hereby.
9. Event of Default; Remedies. Upon the occurrence and continuance of
an Event of Default as hereinbefore defined:
(a) In addition to all the rights and remedies of a secured
party under the Uniform Commercial Code in effect in the State of New York at
that time, Pledgee shall have the right, and without demand or performance or
other demand, advertisement or notice of any kind, except as specified below, to
or upon the Pledgor or any other person (all and each of which demands,
advertisements and/or notices are hereby expressly waived to the extent
permitted by law), to proceed forthwith to collect, receive, appropriate and
realize upon the Collateral, or any part thereof and to proceed forthwith to
sell, assign, give an option or options to purchase, contract to sell, or
otherwise dispose of and deliver the Collateral or any part thereof in one or
more parcels at public or private sale or sales at any stock exchange, broker's
board or at any of Pledgee's offices or elsewhere at such prices and on such
terms (including, without limitation, a requirement that any purchaser of all or
any part of the Collateral shall be required to purchase any securities
constituting the Collateral solely for investment and without any intention to
make a distribution thereof) as Pledgee deems to be commercially reasonable. If
any notification of intended disposition of the Collateral is required by law,
such notification shall be deemed reasonable and properly given if mailed,
postage prepaid, at least ten (10) days before any such disposition to Pledgor's
address indicated above. Any disposition of the Collateral or any part thereof
may be for cash or on credit or for future delivery without assumption of any
credit risk, with the right to Pledgee to purchase all or any part of the
Collateral so sold at any such sale or sales, public or private, free of any
equity or right of redemption in the Pledgor, which right or equity is hereby
expressly waived or released by the
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Pledgor.
(b) All of the Pledgee's rights and remedies, including but
not limited to the foregoing, shall be cumulative and not exclusive and shall be
enforceable alternatively, successively or concurrently as Pledgee may deem
expedient.
(c) Pledgee may elect to obtain the advice of any independent
nationally-known investment banking firm with respect to the method and manner
of sale or other disposition of any of Collateral, the best price reasonably
obtainable therefor, the consideration of cash and/or credit terms, or any other
details concerning such sale or disposition. Pledgee, in its sole discretion,
may elect to sell on such credit terms which it deems reasonable. The sale of
any of the Collateral on credit terms shall not relieve Pledgor or the Borrowers
of their liability under any of the Obligations until the full purchase price
for the Collateral has been paid in full. All payments received by Pledgee in
respect of a sale of Collateral shall be applied to the obligations in the
manner provided in Section 10 of this Agreement, as and when such payments are
received.
(d) Pledgor recognizes that Pledgee may be unable to effect a
public sale of all or a part of the Collateral by reason of certain prohibitions
contained in any applicable securities law, but may be compelled to resort to
more private sales to a restricted group of purchases who will be obliged to
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view for the distribution or resale thereof. Pledgor
agrees that private sales so made may be at prices and on other terms less
favorable to the seller than if the Collateral were sold at public sale, and
that Pledgee has no obligation to delay the sale of any Collateral for the
period of time necessary to permit the registration of the Collateral for public
sale under the Act. Pledgor agrees that a private sale or sales made under the
foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
(e) If any consent, approval or authorization of any state,
municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or other disposition of the Collateral, or any
partial disposition of the Collateral, Pledgor will execute all such
applications and other instruments as may be required in connection with
securing any such consent, approval or authorization, and will otherwise use its
best efforts to secure the same. Pledgor further agrees to use its best efforts
to secure such sale or other disposition of the Collateral as Pledgee may deem
necessary pursuant to the terms of this Agreement.
(f) Upon any sale or other disposition, Pledgee shall have the
right to deliver, assign and transfer to the purchaser thereof the Collateral so
sold or disposed of. Each purchaser at any such sale or other disposition
(including Pledgee) shall hold the Collateral free from any claim or right of
whatever kind, including any equity or right of redemption of Pledgor. Pledgor
specifically waives all rights of redemption, stay or appraisal which it had or
may have under any rule of law or statute now existing or hereafter adopted.
5
15
(g) Pledgee shall not be obligated to make any sale or other
disposition, unless the terms thereof shall be satisfactory to it. Pledgee may,
without notice or publication, adjourn any private or public sale, and, upon ten
(10) days' prior notice to Pledgor, hold such sale at any time or place to which
the same may be so adjourned. In case of any sale of all or any part of the
Collateral, on credit or future delivery, the Collateral so sold may be retained
by Pledgee until the selling price is paid by the purchaser thereof, but Pledgee
shall incur no liability in case of the failure of such purchaser to take up and
pay for the property so sold and, in case of any such failure, such property may
again be sole as herein provided.
10. Disposition of Proceeds.
(a) The proceeds of any sale or disposition of all or any part
of the Collateral shall be applied by Pledgee in the following order:
(i) to the payment in full of the costs and expenses
of such sale or sales, collections, and the protection, declaration and
enforcement of any security interest granted hereunder, including the
compensation of Pledgee's agents and attorneys;
(ii) to the payment of the obligations; and
(iii) to the payment to Pledgor of any surplus then
remaining from such proceeds, subject to the rights of any holder of a lien on
the Collateral of which Pledgee has actual notice.
(b) In the event that the proceeds of any sale or other
disposition are insufficient to cover the amount of the obligations, Pledgor
shall remain liable for any deficiency.
11. Termination. This Agreement shall continue to full force and effect
until all obligations shall have been paid in full and satisfied and the Loan
Agreement shall have been terminated. Subject to any sale or other disposition
by Pledgee of the Collateral or any part thereof pursuant to this Agreement, the
Collateral shall be returned to Pledgor upon full payment, satisfaction and
termination of all of the obligations of Pledgor.
12. Expenses of Pledgee. All expenses (including Pledgee's fees and
charges and fees and disbursements of counsel) incurred by Pledgee in connection
with the perfection and continuation of the security interest granted hereunder
and any actual or attempted sale, exchange of, or any enforcement, collection,
compromise or settlement respecting, the Collateral, or any other action taken
by Pledgee hereunder whether directly or as attorney-in-fact pursuant to a power
of attorney or other authorization therein conferred, for the purpose of
satisfaction of the liability of Borrowers and Pledgor for failure to pay the
obligations or as additional amounts owing by Pledgor to cover Pledgee's costs
of acting against the Collateral, shall be deemed an obligation of Pledgor for
all purposes of this Agreement and Pledgee may apply the Collateral to payment
of or reimbursement of itself and the Bank for such liability.
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13. General Provisions.
(a) Pledgee or its designee is hereby appointed the
attorney-in-fact of Pledgor for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument which Pledgee
reasonably may deem necessary and advisable to accomplish the purposes hereof,
which appointment as attorney-in-fact is irrevocable as one coupled with an
interest.
(b) Pledgee and its assigns shall have no obligation in
respect to the Collateral, except to use reasonable care in holding the
Collateral and to hold and dispose of the same in accordance with the terms of
this Agreement.
(c) Any notice or other communication given hereunder shall be
in writing and sent by registered or certified mail, postage prepaid, as
follows;
If to Pledgor:
KTI Environmental Group, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq., General Counsel
With a copy thereof to:
KTI Environmental Group, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxx, President
If to Pledgee:
Key Bank of New York
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx, Vice President
With a copy thereof to:
Crane, Kelley, Xxxxxx & Parente
00 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
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17
Either party hereto may change its address for notice by giving notice thereof
to the other party in accordance with the provisions of this paragraph.
(d) NO FAILURE ON THE PART OF PLEDGEE TO EXERCISE, AND NO
DELAY IN EXERCISING, ANY RIGHT, POWER OR REMEDY HEREUNDER SHALL OPERATE AS A
WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL EXERCISE BY PLEDGEE OF ANY
RIGHT,POWER OR REMEDY HEREUNDER PRECLUDE ANY OTHER OR FUTURE EXERCISE THEREOF,
OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR REMEDY. THE REMEDIES HEREIN
PROVIDED ARE CUMULATIVE AND ARE NOT EXCLUSIVE OF ANY REMEDIES PROVIDED BY LAW OR
ANY OTHER AGREEMENT. THE REPRESENTATIONS, COVENANTS AND AGREEMENTS OF PLEDGOR
HEREIN CONTAINED SHALL SURVIVE THE DATE HEREOF. NEITHER THIS AGREEMENT NOR THE
PROVISIONS HEREOF CAN BE CHANGED, WAIVED OR TERMINATED ORALLY. THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR
RESPECTIVE SUCCESSORS, LEGAL REPRESENTATIVES AND ASSIGNS. THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first above written.
KTI ENVIRONMENTAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
KEY BANK OF NEW YORK
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
8
18
STATE OF NEW JERSEY )ss.:
COUNTY OF XXXXXX )
On this 29th day of October, 1996, before me personally came Xxxxxx X.
Xxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at 00 Xxxxx Xxxx, Xxxxxxxx, X.X., that he is the President of KTI
Environmental Group, Inc., the corporation described in, and which executed the
above instrument; and that he signed his name thereto by like order of the Board
of Directors of said corporation.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------
Notary Public
XXXXXXX X. XXXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Sept. 25, 0000
XXXXX XX XXX XXXXXX )ss.:
COUNTY OF XXXXXX )
On this 29th day of October, 1996, before me personally came Xxxx
Xxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at _________________, New York, that he is the Vice President of Key
Bank of New York, the corporation described in, and which executed the above
instrument; and that he signed his name thereto by like order of the Board of
Directors of said corporation.
-----------------------------
Notary Public
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PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT made as of this 29th day of October, 1996,
between KTI LIMITED PARTNERS, INC., with its principal office and place of
business at 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Pledgor"),
and KEY BANK OF NEW YORK, a New York state banking corporation with its
principal office at 00 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Pledgee").
Pledgor has entered into a Loan and Security Agreement dated of even
date herewith between the Pledgor and the Pledgee (the "Loan Agreement").
In order to induce Pledgee to make the advances provided for in the
Loan Agreement, Pledgor wishes to grant security and assurance to Pledgee in
order to secure its performance of the obligations under the Loan Agreement and
Note (as defined in the Loan Agreement), and to that effect to pledge to Pledgee
all of the issued and outstanding capital stock of PERC Management Company, a
Maine limited partnership and Maine Energy Recovery Co., a Maine limited
partnership (collectively, the "Pledged Shares").
NOW, THEREFORE, in consideration of the foregoing and for $1.00 and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto mutually agree as follows:
1. Security Interest. As security for the obligations under the Note,
including any renewals or extensions thereof, Pledgor hereby delivers, pledges
and assigns to Pledgee and creates in Pledgee for its benefit a first security
interest in, all of its right, title and interest in and to all of the Pledged
Shares together with all rights and privileges of Pledgor with respect thereto,
all proceeds, income and profits thereof and all property received in addition
thereto, in exchange thereof or in substitution therefor (the "Collateral").
2. Stock Dividends, Options, or Other Adjustments. Prior to the full
payment and performance of the obligations, Pledgee shall receive, as
Collateral, any and all additional shares of stock or any other property of any
kind distributable on or by reason of the Collateral pledged hereunder, whether
in the form of stock dividends, warrants, partial liquidation, conversion,
prepayments or redemptions (in whole or in part) liquidation or otherwise, with
the sole exception of cash dividends or cash interest payments, as the case may
be. For the term of this Agreement the Pledged Shares shall be held by Pledgee.
If any additional shares of capital stock, instruments, or other property
against which a security interest can only be perfected by possession by
Pledgee, which are distributable on or by reason of the Collateral pledged
hereunder, shall come into the possession or control of Pledgor, Pledgor shall
hold or control and forthwith transfer and deliver the same to Pledgee subject
to the provisions of this Agreement.
3. Delivery of Share Certificates; Stock Powers. Instruments and stock
certificates representing the Collateral are being delivered to Pledgee
simultaneously herewith together with stock powers duly executed in blank by
Pledgor. Pledgor shall promptly deliver to Pledgee, or
20
cause the corporations or other entity issuing the Collateral to deliver
directly to Pledgee, share certificates or other documents representing
Collateral acquired or received after the date of this Agreement with a stock
power duly executed by Pledgor. If at any time Pledgee notifies Pledgor that
additional stock powers endorsed in blank held by Pledgee with respect to the
Collateral are required, Pledgor shall promptly execute in blank and deliver
such stock powers as Pledgee may request.
4. Power of Attorney. Pledgor hereby constitutes and irrevocably
appoints Pledgee, with full power of substitution and revocation by Pledgee, as
Pledgor's true and lawful attorney-in-fact, to affix to certificates and
documents representing the Collateral the stock powers delivered with respect
thereto, to transfer or cause the transfer of the Collateral, or any part
thereof on the books of the corporation or other entity issuing the same, to the
name of Pledgee or Pledgee's nominee and thereafter exercise as to such
Collateral all the rights, power and remedies of an owner. The power of attorney
granted pursuant to this Agreement and all authority hereby conferred are
granted and conferred solely to protect Pledgee's interest in the Collateral and
shall not impose any duty upon Pledgee to exercise any power. This power of
attorney shall be irrevocable as one coupled with an interest prior to the
payment in full and/or satisfaction and termination of all obligations to
Pledgee.
5. Inducing Representations of Pledgor. Pledgor represents and warrants
to Pledgee with respect to its collateral that:
(a) Pledgor is the sole legal and beneficial owner of, and has
good and marketable title to, the Collateral, free and clear of all pledges,
liens, security interests and other encumbrances and restrictions on the
transfer and assignment thereof, other than the security interest created by
this Agreement, and Pledgor has the requisite right and authority to execute
this Agreement and to pledge the Collateral to Pledgee as provided for herein;
(b) There are no outstanding options, warrants or other
agreements with respect to the Collateral;
(c) The Collateral has been validly issued and is fully paid
and non-assessable and is not subject to any charter, by-law, statutory,
contractual or other restrictions governing its issuance, transfer, ownership or
control, except that sale may be limited in the absence of an effective
registration under the Securities Act of 1933, as amended, and under applicable
state securities laws or of an opinion of counsel satisfactory to the issuer
that the sale or transfer is exempt from registration under said act and laws.
(d) Any consent, approval or authorization of or designation
or filing with any authority on the part of Pledgor which is required in
connection with the pledge and security interest granted under this Agreement
has been obtained or effected;
(e) The execution and delivery of this Agreement by Pledgor,
and the performance by Pledgor of its obligations hereunder, will not result in
a violation of the
2
21
certificate of incorporation, by-laws, or of any mortgage, indenture, contract,
instrument, judgment, decree, order, statute, rule or regulation to which
Pledgor is subject;
(f) Pledgor has delivered to Pledgee the Pledged Shares duly
endorsed in blank or accompanied by an assignment or assignments sufficient to
transfer title thereto and/or the local equivalent necessary to perfect the
security interest; and
(g) The Pledged shares constitute all the issued and
outstanding capital stock of the issuers thereof.
6. Obligations of Pledgor. Pledgor further covenants to Pledgee with
respect to the Collateral that:
(a) Pledgor will not sell, transfer or convey any interest in,
or suffer or permit any lien or encumbrance to be created upon or with respect
to, any of the Collateral (other than as created under this Agreement) during
the term of the pledge established hereby; and
(b) Pledgor will, at its own expense, at any time and from
time to time at Pledgee's reasonable request, do, make, procure, execute and
deliver all acts, things, writings, assurances and other documents as may be
proposed by Pledgee to further enhance, preserve, establish, demonstrate or
enforce Pledgee's rights, interests and remedies created by, provided in or
emanating from this Agreement.
7. Rights of Pledgor. So long as no Event of Default has occurred and
is continuing (as used herein "Event of Default" shall mean the occurrence of
any Event of Default under the Note, Loan Agreement, any note, document or
instrument delivered or to be delivered pursuant or in connection with the Loan
Agreement (collectively, the "Loan Documents") or the failure of Pledgor to
perform any obligation, or the breach of any covenant, under this Agreement),
and so long as Pledgee has not transferred the Collateral to its own name under
Section 4 hereof:
(a) Pledgor shall be entitled to receive and retain any cash
dividends or cash interest payments paid on the Collateral; and
(b) Pledgor shall be entitled to vote or consent with respect
to the Collateral in any manner not inconsistent with this Agreement, the Note
and Security Agreement. Pledgor hereby grants to Pledgee an irrevocable proxy to
vote the Collateral which proxy shall be effective immediately upon the
occurrence of any Event of Default. Upon request of Pledgee, Pledgor agrees to
deliver to Pledgee such further evidence of such irrevocable proxy as Pledgee
may request.
8. Rights of Pledgee. At any time after the occurrence of an Event of
Default, and so long as such Event of Default continues, without notice, Pledgee
may:
(a) Cause the Collateral to be transferred to its name or to
the name of its
3
22
nominee or nominees and thereafter exercise as to such Collateral all of the
rights, powers and remedies of an owner;
(b) Collect by legal proceedings or otherwise all dividends,
interest, principal payments, capital distributions and other sums now or
hereafter payable on account of the Collateral, and hold the same as part of the
Collateral, or apply the same to any of the obligations in such manner and order
as Pledgee may decide in its sole discretion;
(c) Enter into any extension, subordination, reorganization,
deposit, merger, or consolidation agreement, or any other agreement relating to
or affecting the Collateral, and in connection therewith deposit or surrender
control of the Collateral thereunder, and accept other property in exchange
therefor and hold and apply such property or money so received in accordance
with the provisions hereof; and
(d) Discharge any taxes, liens, security interests or other
encumbrances levied or placed on the Collateral, pay for the maintenance and
preservation of the Collateral, or pay for insurance on the Collateral; the
amount of such payments, plus any and all fees, costs and expenses of Pledgee
(including attorneys' fees and disbursements), in connection therewith, shall,
at Pledgee's option, be reimbursed by Pledgor on demand or added to the
obligations secured hereby.
9. Event of Default; Remedies. Upon the occurrence and continuance of
an Event of Default as hereinbefore defined:
(a) In addition to all the rights and remedies of a secured
party under the Uniform Commercial Code in effect in the State of New York at
that time, Pledgee shall have the right, and without demand or performance or
other demand, advertisement or notice of any kind, except as specified below, to
or upon the Pledgor or any other person (all and each of which demands,
advertisements and/or notices are hereby expressly waived to the extent
permitted by law), to proceed forthwith to collect, receive, appropriate and
realize upon the Collateral, or any part thereof and to proceed forthwith to
sell, assign, give an option or options to purchase, contract to sell, or
otherwise dispose of and deliver the Collateral or any part thereof in one or
more parcels at public or private sale or sales at any stock exchange, broker's
board or at any of Pledgee's offices or elsewhere at such prices and on such
terms (including, without limitation, a requirement that any purchaser of all or
any part of the Collateral shall be required to purchase any securities
constituting the Collateral solely for investment and without any intention to
make a distribution thereof) as Pledgee deems to be commercially reasonable. If
any notification of intended disposition of the Collateral is required by law,
such notification shall be deemed reasonable and properly given if mailed,
postage prepaid, at least ten (10) days before any such disposition to Pledgor's
address indicated above. Any disposition of the Collateral or any part thereof
may be for cash or on credit or for future delivery without assumption of any
credit risk, with the right to Pledgee to purchase all or any part of the
Collateral so sold at any such sale or sales, public or private, free of any
equity or right of redemption in the Pledgor, which right or equity is hereby
expressly waived or released by the
4
23
Pledgor.
(b) All of the Pledgee's rights and remedies, including but
not limited to the foregoing, shall be cumulative and not exclusive and shall be
enforceable alternatively, successively or concurrently as Pledgee may deem
expedient.
(c) Pledgee may elect to obtain the advice of any independent
nationally-known investment banking firm with respect to the method and manner
of sale or other disposition of any of Collateral, the best price reasonably
obtainable therefor, the consideration of cash and/or credit terms, or any other
details concerning such sale or disposition. Pledgee, in its sole discretion,
may elect to sell on such credit terms which it deems reasonable. The sale of
any of the Collateral on credit terms shall not relieve Pledgor or the Borrowers
of their liability under any of the Obligations until the full purchase price
for the Collateral has been paid in full. All payments received by Pledgee in
respect of a sale of Collateral shall be applied to the obligations in the
manner provided in Section 10 of this Agreement, as and when such payments are
received.
(d) Pledgor recognizes that Pledgee may be unable to effect a
public sale of all or a part of the Collateral by reason of certain prohibitions
contained in any applicable securities law, but may be compelled to resort to
more private sales to a restricted group of purchases who will be obliged to
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view for the distribution or resale thereof. Pledgor
agrees that private sales so made may be at prices and on other terms less
favorable to the seller than if the Collateral were sold at public sale, and
that Pledgee has no obligation to delay the sale of any Collateral for the
period of time necessary to permit the registration of the Collateral for public
sale under the Act. Pledgor agrees that a private sale or sales made under the
foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
(e) If any consent, approval or authorization of any state,
municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or other disposition of the Collateral, or any
partial disposition of the Collateral, Pledgor will execute all such
applications and other instruments as may be required in connection with
securing any such consent, approval or authorization, and will otherwise use its
best efforts to secure the same. Pledgor further agrees to use its best efforts
to secure such sale or other disposition of the Collateral as Pledgee may deem
necessary pursuant to the terms of this Agreement.
(f) Upon any sale or other disposition, Pledgee shall have the
right to deliver, assign and transfer to the purchaser thereof the Collateral so
sold or disposed of. Each purchaser at any such sale or other disposition
(including Pledgee) shall hold the Collateral free from any claim or right of
whatever kind, including any equity or right of redemption of Pledgor. Pledgor
specifically waives all rights of redemption, stay or appraisal which it had or
may have under any rule of law or statute now existing or hereafter adopted.
5
24
(g) Pledgee shall not be obligated to make any sale or other
disposition, unless the terms thereof shall be satisfactory to it. Pledgee may,
without notice or publication, adjourn any private or public sale, and, upon ten
(10) days' prior notice to Pledgor, hold such sale at any time or place to which
the same may be so adjourned. In case of any sale of all or any part of the
Collateral, on credit or future delivery, the Collateral so sold may be retained
by Pledgee until the selling price is paid by the purchaser thereof, but Pledgee
shall incur no liability in case of the failure of such purchaser to take up and
pay for the property so sold and, in case of any such failure, such property may
again be sole as herein provided.
10. Disposition of Proceeds.
(a) The proceeds of any sale or disposition of all or any part
of the Collateral shall be applied by Pledgee in the following order:
(i) to the payment in full of the costs and expenses
of such sale or sales, collections, and the protection, declaration and
enforcement of any security interest granted hereunder, including the
compensation of Pledgee's agents and attorneys;
(ii) to the payment of the obligations; and
(iii) to the payment to Pledgor of any surplus then
remaining from such proceeds, subject to the rights of any holder of a lien on
the Collateral of which Pledgee has actual notice.
(b) In the event that the proceeds of any sale or other
disposition are insufficient to cover the amount of the obligations, Pledgor
shall remain liable for any deficiency.
11. Termination. This Agreement shall continue to full force and effect
until all obligations shall have been paid in full and satisfied and the Loan
Agreement shall have been terminated. Subject to any sale or other disposition
by Pledgee of the Collateral or any part thereof pursuant to this Agreement, the
Collateral shall be returned to Pledgor upon full payment, satisfaction and
termination of all of the obligations of Pledgor.
12. Expenses of Pledgee. All expenses (including Pledgee's fees and
charges and fees and disbursements of counsel) incurred by Pledgee in connection
with the perfection and continuation of the security interest granted hereunder
and any actual or attempted sale, exchange of, or any enforcement, collection,
compromise or settlement respecting, the Collateral, or any other action taken
by Pledgee hereunder whether directly or as attorney-in-fact pursuant to a power
of attorney or other authorization therein conferred, for the purpose of
satisfaction of the liability of Borrowers and Pledgor for failure to pay the
obligations or as additional amounts owing by Pledgor to cover Pledgee's costs
of acting against the Collateral, shall be deemed an obligation of Pledgor for
all purposes of this Agreement and Pledgee may apply the Collateral to payment
of or reimbursement of itself and the Bank for such liability.
6
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13. General Provisions.
(a) Pledgee or its designee is hereby appointed the
attorney-in-fact of Pledgor for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument which Pledgee
reasonably may deem necessary and advisable to accomplish the purposes hereof,
which appointment as attorney-in-fact is irrevocable as one coupled with an
interest.
(b) Pledgee and its assigns shall have no obligation in
respect to the Collateral, except to use reasonable care in holding the
Collateral and to hold and dispose of the same in accordance with the terms of
this Agreement.
(c) Any notice or other communication given hereunder shall be
in writing and sent by registered or certified mail, postage prepaid, as
follows;
If to Pledgor:
KTI Limited Partners, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq., General Counsel
With a copy thereof to:
KTI Limited Partners, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxx, President
If to Pledgee:
Key Bank of New York
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx, Vice President
With a copy thereof to:
Crane, Kelley, Xxxxxx & Parente
00 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
7
26
Either party hereto may change its address for notice by giving notice thereof
to the other party in accordance with the provisions of this paragraph.
(D) NO FAILURE ON THE PART OF PLEDGEE TO EXERCISE, AND NO
DELAY IN EXERCISING, ANY RIGHT, POWER OR REMEDY HEREUNDER SHALL OPERATE AS A
WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL EXERCISE BY PLEDGEE OF ANY
RIGHT,POWER OR REMEDY HEREUNDER PRECLUDE ANY OTHER OR FUTURE EXERCISE THEREOF,
OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR REMEDY. THE REMEDIES HEREIN
PROVIDED ARE CUMULATIVE AND ARE NOT EXCLUSIVE OF ANY REMEDIES PROVIDED BY LAW OR
ANY OTHER AGREEMENT. THE REPRESENTATIONS, COVENANTS AND AGREEMENTS OF PLEDGOR
HEREIN CONTAINED SHALL SURVIVE THE DATE HEREOF. NEITHER THIS AGREEMENT NOR THE
PROVISIONS HEREOF CAN BE CHANGED, WAIVED OR TERMINATED ORALLY. THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR
RESPECTIVE SUCCESSORS, LEGAL REPRESENTATIVES AND ASSIGNS. THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first above written.
KTI LIMITED PARTNERS, INC.
By:/s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
KEY BANK OF NEW YORK
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
8
27
STATE OF NEW JERSEY )ss.:
COUNTY OF XXXXXX )
On this 29th day of October, 1996, before me personally came Xxxxxx X.
Xxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at ________________________________, that he is the President of KTI
Limited Partners, Inc., the corporation described in, and which executed the
above instrument; and that he signed his name thereto by like order of the Board
of Directors of said corporation.
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Notary Public
XXXXXXX X. XXXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Sept 25, 0000
XXXXX XX XXX XXXXXX )ss.:
COUNTY OF XXXXXX )
On this 29th day of October, 1996, before me personally came Xxxx
Xxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at _________________, New York, that he is the Vice President of Key
Bank of New York, the corporation described in, and which executed the above
instrument; and that he signed his name thereto by like order of the Board of
Directors of said corporation.
-------------------------------
Notary Public
9
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PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT made as of this 29th day of October, 1996,
between XXXX TECHNOLOGIES INC., with its principal office and place of business
at 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Pledgor"), and KEY
BANK OF NEW YORK, a New York state banking corporation with its principal office
at 00 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Pledgee").
Pledgor has entered into a Loan and Security Agreement dated of even
date herewith between the Pledgor and the Pledgee (the "Loan Agreement").
In order to induce Pledgee to make the advances provided for in the
Loan Agreement, Pledgor wishes to grant security and assurance to Pledgee in
order to secure its performance of the obligations under the Loan Agreement and
Note (as defined in the Loan Agreement), and to that effect to pledge to Pledgee
all of the issued and outstanding capital stock of PERC, Inc., a Delaware
corporation and Maine Energy Recovery Co., a Maine limited partnership
(collectively, the "Pledged Shares").
NOW, THEREFORE, in consideration of the foregoing and for $1.00 and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto mutually agree as follows:
1. Security Interest. As security for the obligations under the Note,
including any renewals or extensions thereof, Pledgor hereby delivers, pledges
and assigns to Pledgee and creates in Pledgee for its benefit a first security
interest in, all of its right, title and interest in and to all of the Pledged
Shares together with all rights and privileges of Pledgor with respect thereto,
all proceeds, income and profits thereof and all property received in addition
thereto, in exchange thereof or in substitution therefor (the "Collateral").
2. Stock Dividends, Options, or Other Adjustments. Prior to the full
payment and performance of the obligations, Pledgee shall receive, as
Collateral, any and all additional shares of stock or any other property of any
kind distributable on or by reason of the Collateral pledged hereunder, whether
in the form of stock dividends, warrants, partial liquidation, conversion,
prepayments or redemptions (in whole or in part) liquidation or otherwise, with
the sole exception of cash dividends or cash interest payments, as the case may
be. For the term of this Agreement the Pledged Shares shall be held by Pledgee.
If any additional shares of capital stock, instruments, or other property
against which a security interest can only be perfected by possession by
Pledgee, which are distributable on or by reason of the Collateral pledged
hereunder, shall come into the possession or control of Pledgor, Pledgor shall
hold or control and forthwith transfer and deliver the same to Pledgee subject
to the provisions of this Agreement.
3. Delivery of Share Certificates; Stock Powers. Instruments and stock
certificates representing the Collateral are being delivered to Pledgee
simultaneously herewith together with stock powers duly executed in blank by
Pledgor. Pledgor shall promptly deliver to Pledgee, or
29
cause the corporations or other entity issuing the Collateral to deliver
directly to Pledgee, share certificates or other documents representing
Collateral acquired or received after the date of this Agreement with a stock
power duly executed by Pledgor. If at any time Pledgee notifies Pledgor that
additional stock powers endorsed in blank held by Pledgee with respect to the
Collateral are required, Pledgor shall promptly execute in blank and deliver
such stock powers as Pledgee may request.
4. Power of Attorney. Pledgor hereby constitutes and irrevocably
appoints Pledgee, with full power of substitution and revocation by Pledgee, as
Pledgor's true and lawful attorney-in-fact, to affix to certificates and
documents representing the Collateral the stock powers delivered with respect
thereto, to transfer or cause the transfer of the Collateral, or any part
thereof on the books of the corporation or other entity issuing the same, to the
name of Pledgee or Pledgee's nominee and thereafter exercise as to such
Collateral all the rights, power and remedies of an owner. The power of attorney
granted pursuant to this Agreement and all authority hereby conferred are
granted and conferred solely to protect Pledgee's interest in the Collateral and
shall not impose any duty upon Pledgee to exercise any power. This power of
attorney shall be irrevocable as one coupled with an interest prior to the
payment in full and/or satisfaction and termination of all obligations to
Pledgee.
5. Inducing Representations of Pledgor. Pledgor represents and warrants
to Pledgee with respect to its collateral that:
(a) Pledgor is the sole legal and beneficial owner of, and has
good and marketable title to, the Collateral, free and clear of all pledges,
liens, security interests and other encumbrances and restrictions on the
transfer and assignment thereof, other than the security interest created by
this Agreement, and Pledgor has the requisite right and authority to execute
this Agreement and to pledge the Collateral to Pledgee as provided for herein;
(b) There are no outstanding options, warrants or other
agreements with respect to the Collateral;
(c) The Collateral has been validly issued and is fully paid
and non-assessable and is not subject to any charter, by-law, statutory,
contractual or other restrictions governing its issuance, transfer, ownership or
control, except that sale may be limited in the absence of an effective
registration under the Securities Act of 1933, as amended, and under applicable
state securities laws or of an opinion of counsel satisfactory to the issuer
that the sale or transfer is exempt from registration under said act and laws.
(d) Any consent, approval or authorization of or designation
or filing with any authority on the part of Pledgor which is required in
connection with the pledge and security interest granted under this Agreement
has been obtained or effected;
(e) The execution and delivery of this Agreement by Pledgor,
and the performance by Pledgor of its obligations hereunder, will not result in
a violation of the
2
30
certificate of incorporation, by-laws, or of any mortgage, indenture, contract,
instrument, judgment, decree, order, statute, rule or regulation to which
Pledgor is subject;
(f) Pledgor has delivered to Pledgee the Pledged Shares duly
endorsed in blank or accompanied by an assignment or assignments sufficient to
transfer title thereto and/or the local equivalent necessary to perfect the
security interest; and
(g) The Pledged shares constitute all the issued and
outstanding capital stock of the issuers thereof.
6. Obligations of Pledgor. Pledgor further covenants to Pledgee with
respect to the Collateral that:
(a) Pledgor will not sell, transfer or convey any interest in,
or suffer or permit any lien or encumbrance to be created upon or with respect
to, any of the Collateral (other than as created under this Agreement) during
the term of the pledge established hereby; and
(b) Pledgor will, at its own expense, at any time and from
time to time at Pledgee's reasonable request, do, make, procure, execute and
deliver all acts, things, writings, assurances and other documents as may be
proposed by Pledgee to further enhance, preserve, establish, demonstrate or
enforce Pledgee's rights, interests and remedies created by, provided in or
emanating from this Agreement.
7. Rights of Pledgor. So long as no Event of Default has occurred and
is continuing (as used herein "Event of Default" shall mean the occurrence of
any Event of Default under the Note, Loan Agreement, any note, document or
instrument delivered or to be delivered pursuant or in connection with the Loan
Agreement (collectively, the "Loan Documents") or the failure of Pledgor to
perform any obligation, or the breach of any covenant, under this Agreement),
and so long as Pledgee has not transferred the Collateral to its own name under
Section 4 hereof:
(a) Pledgor shall be entitled to receive and retain any cash
dividends or cash interest payments paid on the Collateral; and
(b) Pledgor shall be entitled to vote or consent with respect
to the Collateral in any manner not inconsistent with this Agreement, the Note
and Security Agreement. Pledgor hereby grants to Pledgee an irrevocable proxy to
vote the Collateral which proxy shall be effective immediately upon the
occurrence of any Event of Default. Upon request of Pledgee, Pledgor agrees to
deliver to Pledgee such further evidence of such irrevocable proxy as Pledgee
may request.
8. Rights of Pledgee. At any time after the occurrence of an Event of
Default, and so long as such Event of Default continues, without notice, Pledgee
may:
(a) Cause the Collateral to be transferred to its name or to
the name of its
3
31
nominee or nominees and thereafter exercise as to such Collateral all of the
rights, powers and remedies of an owner;
(b) Collect by legal proceedings or otherwise all dividends,
interest, principal payments, capital distributions and other sums now or
hereafter payable on account of the Collateral, and hold the same as part of the
Collateral, or apply the same to any of the obligations in such manner and order
as Pledgee may decide in its sole discretion;
(c) Enter into any extension, subordination, reorganization,
deposit, merger, or consolidation agreement, or any other agreement relating to
or affecting the Collateral, and in connection therewith deposit or surrender
control of the Collateral thereunder, and accept other property in exchange
therefor and hold and apply such property or money so received in accordance
with the provisions hereof; and
(d) Discharge any taxes, liens, security interests or other
encumbrances levied or placed on the Collateral, pay for the maintenance and
preservation of the Collateral, or pay for insurance on the Collateral; the
amount of such payments, plus any and all fees, costs and expenses of Pledgee
(including attorneys' fees and disbursements), in connection therewith, shall,
at Pledgee's option, be reimbursed by Pledgor on demand or added to the
obligations secured hereby.
9. Event of Default; Remedies. Upon the occurrence and continuance of
an Event of Default as hereinbefore defined:
(a) In addition to all the rights and remedies of a secured
party under the Uniform Commercial Code in effect in the State of New York at
that time, Pledgee shall have the right, and without demand or performance or
other demand, advertisement or notice of any kind, except as specified below, to
or upon the Pledgor or any other person (all and each of which demands,
advertisements and/or notices are hereby expressly waived to the extent
permitted by law), to proceed forthwith to collect, receive, appropriate and
realize upon the Collateral, or any part thereof and to proceed forthwith to
sell, assign, give an option or options to purchase, contract to sell, or
otherwise dispose of and deliver the Collateral or any part thereof in one or
more parcels at public or private sale or sales at any stock exchange, broker's
board or at any of Pledgee's offices or elsewhere at such prices and on such
terms (including, without limitation, a requirement that any purchaser of all or
any part of the Collateral shall be required to purchase any securities
constituting the Collateral solely for investment and without any intention to
make a distribution thereof) as Pledgee deems to be commercially reasonable. If
any notification of intended disposition of the Collateral is required by law,
such notification shall be deemed reasonable and properly given if mailed,
postage prepaid, at least ten (10) days before any such disposition to Pledgor's
address indicated above. Any disposition of the Collateral or any part thereof
may be for cash or on credit or for future delivery without assumption of any
credit risk, with the right to Pledgee to purchase all or any part of the
Collateral so sold at any such sale or sales, public or private, free of any
equity or right of redemption in the Pledgor, which right or equity is hereby
expressly waived or released by the
4
32
Pledgor.
(b) All of the Pledgee's rights and remedies, including but
not limited to the foregoing, shall be cumulative and not exclusive and shall be
enforceable alternatively, successively or concurrently as Pledgee may deem
expedient.
(c) Pledgee may elect to obtain the advice of any independent
nationally-known investment banking firm with respect to the method and manner
of sale or other disposition of any of Collateral, the best price reasonably
obtainable therefor, the consideration of cash and/or credit terms, or any other
details concerning such sale or disposition. Pledgee, in its sole discretion,
may elect to sell on such credit terms which it deems reasonable. The sale of
any of the Collateral on credit terms shall not relieve Pledgor or the Borrowers
of their liability under any of the Obligations until the full purchase price
for the Collateral has been paid in full. All payments received by Pledgee in
respect of a sale of Collateral shall be applied to the obligations in the
manner provided in Section 10 of this Agreement, as and when such payments are
received.
(d) Pledgor recognizes that Pledgee may be unable to effect a
public sale of all or a part of the Collateral by reason of certain prohibitions
contained in any applicable securities law, but may be compelled to resort to
more private sales to a restricted group of purchases who will be obliged to
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view for the distribution or resale thereof. Pledgor
agrees that private sales so made may be at prices and on other terms less
favorable to the seller than if the Collateral were sold at public sale, and
that Pledgee has no obligation to delay the sale of any Collateral for the
period of time necessary to permit the registration of the Collateral for public
sale under the Act. Pledgor agrees that a private sale or sales made under the
foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
(e) If any consent, approval or authorization of any state,
municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or other disposition of the Collateral, or any
partial disposition of the Collateral, Pledgor will execute all such
applications and other instruments as may be required in connection with
securing any such consent, approval or authorization, and will otherwise use its
best efforts to secure the same. Pledgor further agrees to use its best efforts
to secure such sale or other disposition of the Collateral as Pledgee may deem
necessary pursuant to the terms of this Agreement.
(f) Upon any sale or other disposition, Pledgee shall have the
right to deliver, assign and transfer to the purchaser thereof the Collateral so
sold or disposed of. Each purchaser at any such sale or other disposition
(including Pledgee) shall hold the Collateral free from any claim or right of
whatever kind, including any equity or right of redemption of Pledgor. Pledgor
specifically waives all rights of redemption, stay or appraisal which it had or
may have under any rule of law or statute now existing or hereafter adopted.
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33
(g) Pledgee shall not be obligated to make any sale or other
disposition, unless the terms thereof shall be satisfactory to it. Pledgee may,
without notice or publication, adjourn any private or public sale, and, upon ten
(10) days' prior notice to Pledgor, hold such sale at any time or place to which
the same may be so adjourned. In case of any sale of all or any part of the
Collateral, on credit or future delivery, the Collateral so sold may be retained
by Pledgee until the selling price is paid by the purchaser thereof, but Pledgee
shall incur no liability in case of the failure of such purchaser to take up and
pay for the property so sold and, in case of any such failure, such property may
again be sole as herein provided.
10. Disposition of Proceeds.
(a) The proceeds of any sale or disposition of all or any part
of the Collateral shall be applied by Pledgee in the following order:
(i) to the payment in full of the costs and expenses
of such sale or sales, collections, and the protection, declaration and
enforcement of any security interest granted hereunder, including the
compensation of Pledgee's agents and attorneys;
(ii) to the payment of the obligations; and
(iii) to the payment to Pledgor of any surplus then
remaining from such proceeds, subject to the rights of any holder of a lien on
the Collateral of which Pledgee has actual notice.
(b) In the event that the proceeds of any sale or other
disposition are insufficient to cover the amount of the obligations, Pledgor
shall remain liable for any deficiency.
11. Termination. This Agreement shall continue to full force and effect
until all obligations shall have been paid in full and satisfied and the Loan
Agreement shall have been terminated. Subject to any sale or other disposition
by Pledgee of the Collateral or any part thereof pursuant to this Agreement, the
Collateral shall be returned to Pledgor upon full payment, satisfaction and
termination of all of the obligations of Pledgor.
12. Expenses of Pledgee. All expenses (including Pledgee's fees and
charges and fees and disbursements of counsel) incurred by Pledgee in connection
with the perfection and continuation of the security interest granted hereunder
and any actual or attempted sale, exchange of, or any enforcement, collection,
compromise or settlement respecting, the Collateral, or any other action taken
by Pledgee hereunder whether directly or as attorney-in-fact pursuant to a power
of attorney or other authorization therein conferred, for the purpose of
satisfaction of the liability of Borrowers and Pledgor for failure to pay the
obligations or as additional amounts owing by Pledgor to cover Pledgee's costs
of acting against the Collateral, shall be deemed an obligation of Pledgor for
all purposes of this Agreement and Pledgee may apply the Collateral to payment
of or reimbursement of itself and the Bank for such liability.
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13. General Provisions.
(a) Pledgee or its designee is hereby appointed the
attorney-in-fact of Pledgor for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument which Pledgee
reasonably may deem necessary and advisable to accomplish the purposes hereof,
which appointment as attorney-in-fact is irrevocable as one coupled with an
interest.
(b) Pledgee and its assigns shall have no obligation in
respect to the Collateral, except to use reasonable care in holding the
Collateral and to hold and dispose of the same in accordance with the terms of
this Agreement.
(c) Any notice or other communication given hereunder shall be
in writing and sent by registered or certified mail, postage prepaid, as
follows;
If to Pledgor:
Xxxx Technologies Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq., General Counsel
With a copy thereof to:
Xxxx Technologies Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxx, President
If to Pledgee:
Key Bank of New York
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx, Vice President
With a copy thereof to:
Crane, Kelley, Xxxxxx & Parente
00 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
7
35
Either party hereto may change its address for notice by giving notice thereof
to the other party in accordance with the provisions of this paragraph.
(d) NO FAILURE ON THE PART OF PLEDGEE TO EXERCISE, AND NO
DELAY IN EXERCISING, ANY RIGHT, POWER OR REMEDY HEREUNDER SHALL OPERATE AS A
WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL EXERCISE BY PLEDGEE OF ANY
RIGHT,POWER OR REMEDY HEREUNDER PRECLUDE ANY OTHER OR FUTURE EXERCISE THEREOF,
OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR REMEDY. THE REMEDIES HEREIN
PROVIDED ARE CUMULATIVE AND ARE NOT EXCLUSIVE OF ANY REMEDIES PROVIDED BY LAW OR
ANY OTHER AGREEMENT. THE REPRESENTATIONS, COVENANTS AND AGREEMENTS OF PLEDGOR
HEREIN CONTAINED SHALL SURVIVE THE DATE HEREOF. NEITHER THIS AGREEMENT NOR THE
PROVISIONS HEREOF CAN BE CHANGED, WAIVED OR TERMINATED ORALLY. THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR
RESPECTIVE SUCCESSORS, LEGAL REPRESENTATIVES AND ASSIGNS. THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first above written.
XXXX TECHNOLOGIES, INC.
By:/s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: President
KEY BANK OF NEW YORK
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
8
36
STATE OF NEW JERSEY )ss.:
COUNTY OF XXXXXX )
On this 29th day of October, 1996, before me personally came Xxxxxx X.
Xxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at 00 Xxxxx Xxxx, Xxxxxxxx N.J., that he is the President of Xxxx
Technologies, Inc., the corporation described in, and which executed the above
instrument; and that he signed his name thereto by like order of the Board of
Directors of said corporation.
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Notary Public
XXXXXXX X. XXXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Sept. 25, 0000
XXXXX XX XXX XXXXXX )ss.:
COUNTY OF XXXXXX )
On this 29th day of October, 1996, before me personally came Xxxx
Xxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at _________________, New York, that he is the Vice President of Key
Bank of New York, the corporation described in, and which executed the above
instrument; and that he signed his name thereto by like order of the Board of
Directors of said corporation.
----------------------------
Notary Public
9
