Exhibit 10.19(a)
FIRST AMENDMENT
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TO
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PLEDGE AGREEMENT
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This FIRST AMENDMENT TO PLEDGE AGREEMENT is dated as of July 15, 1994,
amending and supplementing the Pledge Agreement dated as of January 14, 1994
(the "Pledge Agreement") made by Xxxxxxx Xxxxxxxxx (the "Pledgor") in favor of
Norton XxXxxxxxxx of Xxxxxx, Inc., a New York corporation (the "Pledgee").
Capitalized terms used herein but not defined herein shall have the meanings
ascribed to them in the Pledge Agreement.
W I T N E S S E T H:
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WHEREAS, the Pledgee has made a loan in the amount of $920,000 to the
Pledgor (the "Loan") evidenced by a Non-Negotiable Limited Recourse Promissory
Note of the Pledgor dated as of November 5, 1993 payable to the order of the
Pledgee (the "Note"), which Note has been amended and restated by the Amended
and Restated Non-Negotiable Limited Recourse Promissory Note and the Second
Amended and Restated Non-Negotiable Limited Recourse Promissory Note (the
"Second Amended Note");
WHEREAS, each determining it to be in such party's best interest to do
so, the Pledgor and Pledgee in the Second Amended Note have amended the
prepayment provisions of the Note; and
WHEREAS, to fulfill the purposes and intentions of such amendment to
the Note, the Pledgor and the Pledgee agree that an amendment to the Pledge
Agreement is required.
NOW, THEREFORE, for the foregoing reasons and upon the terms and
conditions set forth herein, the parties hereto agree as follows:
1. Additional Provision. The Pledge Agreement shall be amended to
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add a new Section 5 which shall read in its entirety as follows:
"5. Release of Pledged Stock upon Sale or Transfer.
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Upon the sale or transfer of Pledged Stock by the
Pledgor in accordance with the terms hereof, the
Pledgee hereby agrees to release the pledge with
respect to such shares being so sold or transferred
provided that, and only upon the condition that,
certain of the proceeds of such sale
or transfer of Pledged Stock be applied to the
prepayment of the Second Amended Note in accordance
with the terms thereof."
2. Renumbering of Sections. The former "Section 5" of the Pledge
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Agreement shall become "Section 6" and every section thereafter shall be
increased by one.
3. Severability. Any provision of this First Amendment to Pledge
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Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
4. Notices. All notices, demands, requests and other communications
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given to or made upon any party hereto in connection with this First Amendment
to Pledge Agreement shall, except as otherwise expressly herein provided, be in
writing (including telecopied, telexed or telegraphic communication) and mailed,
by certified or registered mail, postage prepaid, telecopied, telexed,
telegraphed or personally delivered to the respective parties, as follows:
Pledgor:
Xxxxxxx Xxxxxxxxx
c/o Norton XxXxxxxxxx, Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Opton Handler Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxx
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Pledgee:
Norton XxXxxxxxxx of Xxxxxx, Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Cost, Esq.
Telecopy: (000) 000-0000
or in accordance with any subsequent written direction from the recipient party
to the sending party. All such notices and other communications shall, except as
otherwise expressly herein provided, be effective upon delivery if delivered by
hand, two days after deposit in the mail, postage prepaid, in the case of
telecopy or telex, when received, or in the case of telegraph, when delivered to
the telegraph company, charges prepaid.
5. Further Indemnification. The Pledgor agrees to pay, and to save
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the Pledgee harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all excise, sales, transfer or other taxes
which may be payable or determined to be payable with respect to any of the
Pledged Stock.
6. No Waiver; Cumulative Remedies. The Pledgee shall not by any act,
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delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by the
Pledgee, and then only to the extent therein set forth. A waiver by the Pledgee
of any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Pledgee would otherwise have on any future
occasion. No failure to exercise nor any delay in exercising on the part of the
Pledgee, any right, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and may be exercised singly or concurrently, and are not
exclusive of any rights or remedies provided by law.
7. Waivers, Amendments; Applicable Law. None of the terms or
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provisions of this First Amendment to Pledge Agreement may be waived, altered,
modified or amended except by an instrument in writing, duly executed by the
Pledgee and the Pledgor. This Pledge Agreement and all obligations of the
Pledgor hereunder shall be binding upon the heirs, legal representatives and
permitted assigns of the Pledgor, and, together with the rights and remedies of
the Pledgee hereunder, shall inure to the benefit of the Pledgee and its
successors and assigns, provided that the Pledgor may not assign any of his
rights or obligations hereunder without the prior written consent of the
Pledgee. This First Amendment to Pledge Agreement shall be governed by, and be
construed and interpreted in accordance with, the laws of the State of New York
applicable to agreements made and to be performed entirely within such State.
8. Resolution of Drafting Ambiguities. The Pledgor acknowledges that
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he was represented by counsel in connection with the preparation, execution and
delivery of this First Amendment to Pledge Agreement and the other instruments,
documents and agreements contemplated hereby or thereby to be executed and
delivered by him and that his counsel received all of the foregoing instruments,
documents and agreements and that any rule of construction under any applicable
law to the effect that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of any of the
foregoing instruments, documents and agreements.
9. Counterparts. This First Amendment to Pledge Agreement may be
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executed in two or more counterparts, each of which shall be deemed an original,
but all of which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Pledgor has duly executed and delivered this
PLEDGE AGREEMENT as of the day and year first above written.
PLEDGOR:
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Xxxxxxx Xxxxxxxxx
PLEDGEE:
NORTON XXXXXXXXXX OF XXXXXX, INC.
By: _____________________________
Name:
Title:
