Exhibit 4
STOCK PLEDGE AGREEMENT
(Brokerage Account)
THIS STOCK PLEDGE AGREEMENT, dated as of July 15, 1997, made by
Xxxxxx X. Xxxxxxxx ("Pledgor"), to ACX Technologies, Inc., a Colorado
corporation ("Pledgee").
RECITALS
A. Pledgor is the owner of One Million (1,000,000) shares of
Common Stock ("Common Stock") of Photocomm, Inc., an Arizona
corporation (the "Company"), (collectively, the "Pledged Shares").
B. Pledgor is the owner of a brokerage account at Merrill,
Lynch, Xxxxxx, Xxxxxx & Xxxxx, Incorporated ("Broker"), No. ________
(the "Brokerage Account") which contains the Common Stock and all
securities entitlements with respect thereto.
C. Concurrently with the execution of this Agreement, Pledgee is
loaning Pledgor the sum of $2,000,000 (the "Loan") on the terms and
conditions set forth in the Nonrecourse Promissory Note executed
concurrently with this Agreement and delivered by Pledgor to Pledgee
in the form attached hereto (the "Note"). The Loan, the Note and this
Agreement are made and entered into pursuant to a Settlement Agreement
and Mutual Release dated as of July 7, 1997, between Pledgor, Pledgee,
the Company and Golden Technologies, Company, Inc. (the "Settlement
Agreement").
D. It is a condition precedent to Pledgee's making of the Loan
that Pledgor pledge to Pledgee the Pledged Shares, as security for
Pledgor's obligations under the Note.
NOW, THEREFORE, in consideration of the premises, the Pledgor
hereby agrees with Pledgee as follows:
SECTION 1. Pledge. The Pledgor pledges to Pledgee and grants to
Pledgee a security interest in the Pledged Shares, the Brokerage
Account and the certificates and securities entitlements representing
the Pledged Shares, and all cash and/or stock dividends, cash,
instruments and other property from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of the Pledged Shares and the Brokerage Account, and all proceeds of
the foregoing (collectively, the "Collateral").
SECTION 2. Security for Obligations. This Agreement secures the
payment of all obligations of Pledgor now or hereafter existing under
the Note, whether for principal, interest, fees, expenses or
otherwise, and all obligations of the Pledgor now or hereafter
existing under this Agreement (collectively, the "Obligations").
SECTION 3. Delivery of Collateral. All shares of the Common
Stock shall be held and maintained in the Brokerage Account subject to
the terms and security interest of this Agreement and the Pledged
Collateral Account Agreement executed and delivered by the parties in
the form attached hereto (the "Broker's Agreement"). If any Event of
Default (as defined below) occurs, Pledgee shall have the right, at
any time in its discretion and without notice to Pledgor, to transfer
to or to register in the name of Pledgee or any of its nominees any or
all of the Collateral. For purposes of this Agreement, "Event of
Default" means any default by Pledgor of its obligations under this
Agreement or the Note.
SECTION 4. Representations and Warranties. Pledgor represents
and warrants as follows:
(a) The pledge of the Collateral pursuant to this Agreement
creates a valid and perfected first priority security interest in the
Collateral, securing the payment of the Obligations.
(b) Pledgor is the legal and beneficial owner of the Collateral
free an clear of any lien, security interest, option or other charge
or encumbrance except for the security interest created by this
Agreement.
(c) No authorization, approval, or other action by, and no
notice to or filing with, any governmental authority, regulatory body
or third party is required either (i) for the pledge by Pledgor of the
Collateral pursuant to this Agreement or for the execution, delivery
or performance of this Agreement by Pledgor or (ii) for the exercise
by Pledgee of the voting or other rights provided for in this
Agreement or the remedies in respect of the Collateral pursuant to
this Agreement (except as may be required in connection with
disposition of the Collateral by laws affecting the offering and sale
of securities generally).
(d) Contemporaneously with the execution of this Agreement, and
subject to the provisions hereof, Pledgor has duly executed and
delivered to Pledgee a UCC-1 Financing Statement with respect to the
Collateral.
(e) The pledge of the Pledged Shares and the Brokerage Account
is not intended to be, and is not a pledge of "Margin Stock" as that
term is used in Regulations of the Board of Governors of the Federal
Reserve System.
(f) Pledgor is not a party to and has no knowledge of any
agreements, except for this Agreement, restricting the transfer of the
Pledged Shares.
(g) Pledgor has duly executed and delivered to the Broker the
Broker's Agreement and the Broker has duly executed and delivered the
Acknowledgment thereof.
SECTION 5. Further Assurances.
(a) Pledgor agrees that at any time and from time to time, at
the expense of Pledgor, Pledgor will promptly execute and deliver all
further instruments and documents, and take all further action, that
may be necessary, or that pledgee may reasonably request, in order to
perfect and protect any security interest granted or purported to be
grated by this Agreement or to enable Pledgee to exercise and enforce
is rights and remedies under this Agreement with respect to any
Collateral.
(b) Without limiting the generality of the foregoing, Pledgor
agrees that in the event Pledgor, by virtue of the ownership of any
applicable portion of the Collateral, now is, or hereafter becomes,
entitled (with or without additional consideration) to additional
securities as the result of any corporate reorganization, merger,
consolidation, stock split, stock dividend, conversion or preemptive
right or otherwise, Pledgor shall (i)cause the issuer of such
additional securities to deliver to the Brokerage Account the
certificates or securities entitlements evidencing Pledgor's ownership
thereof or to deposit the same in the Brokerage Account and Pledgor
hereby authorizes and empowers Pledgee to demand the same from such
issuer or Broker, and agrees if such certificates are delivered to
Pledgor, to take possession thereof in trust for Pledgee and to
deposit he same in the Brokerage Account; (ii) deliver to Pledgee a
certificate executed by Pledgor and dated the date Pledgor receives
such additional securities, as to the truth and correctness on such
date of the warranties set forth in Section 4 hereof; and (iii)
deliver to Pledgee such other certificates, forms and other
instruments as Pledgee may request in connection with the pledge of
such additional securities to Pledgee.
(c) Pledgor agrees that such additional securities shall
constitute a portion of the Collateral and be subject to this
Agreement in the same manner and to the same extent as the Pledged
Shares pledged hereby on the date hereof.
SECTION 6. Voting Rights; Dividends; Etc.
(a) As long as no Event of Default has occurred and is
continuing:
(i) Pledgor shall be entitled to receive and retain any and all
dividends, interest and other payments and distributions paid in
respect of the Collateral, provided, however, that any and all
(A) such distributions paid or payable other than in cash in
respect of, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any
Collateral,
(B) such distributions paid or payable in cash in respect of any
Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital
surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in redemption
of, or in exchange for, any Collateral,
shall be, and shall be forthwith delivered to Pledgee to hold as,
Collateral and shall, if received by Pledgor, be received in trust for
the benefit of Pledgee, be segregated from the other property or funds
of Pledgor, and be forthwith delivered to Pledgee as Collateral in the
same form as so received (with any necessary endorsement).
(ii) Pledgee shall execute and deliver to Pledgor all such
instruments as Pledgor may reasonably request for the purpose of
enabling Pledgor to receive the distributions or payments which
Pledgor is authorized to receive and retain pursuant to Section
6(a)(i) above.
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) All rights of Pledgor to receive the distributions and
payments which Pledgor would otherwise be authorized to receive and
retain pursuant to Section 6(a)(ii) shall cease, and all such rights
shall automatically become vested in Pledgee who shall then have the
sole right to receive and hold such distributions and payments as
Collateral.
(ii) All distributions and payments which are received by
Pledgor contrary to the provisions of Section 6(b)(i) shall be
received in trust for the benefit of Pledgee, shall be segregated from
other funds of Pledgor and shall be forthwith paid over to Pledgee as
Collateral in the same form as so received, with any necessary
endorsement.
(c) During the term of this Agreement:
(i) Pledgee and Pledgor each shall be entitled to exercise any
and all voting and other consensual rights pertaining to one-half of
the Collateral subject to this Agreement from time to time; provided,
that upon the occurrence and during the continuance of an Event of
Default, all rights of Pledgor to exercise any such voting or other
consensual rights which Pledgor would otherwise be authorized to
exercise shall cease, and all such rights shall automatically become
vested in Pledgee, who shall then have the sole right to exercise such
rights.
(ii) Pledgor and Pledgee each shall execute and deliver to the
other all such proxies and other instruments as Pledgor and Pledgee
each may reasonably request for the purpose of enabling Pledgor and
Pledgee to exercise the voting and consensual rights which Pledgor and
Pledgee are entitled to exercise pursuant to Section 6(c)(i) above.
SECTION 7. Transfers and Other Liens.
(a) Restrictions. Pledgor agrees that it will not during the
term of this Agreement (i) sell or otherwise dispose of, or grant any
option with respect to, any of the Collateral, except as expressly
permitted in this Agreement, or (ii) create or permit to exist any
lien, security interest, or other charge or encumbrance upon or with
respect to any of the Collateral, except for the security interest
under this Agreement.
(b) Partial Releases. Pledgor may cause Common Stock held in
the Brokerage Account to be sold, with a portion of the proceeds
thereof to be remitted to Pledgee and a portion of such proceeds to be
released from this Agreement and remitted to Pledgor, as expressly
provided in this Section 7 and the Broker's Agreement, whereupon the
proceeds received by Pledgee shall be treated as a prepayment of
principal under the Note. Pledgor shall not instruct the Broker to
sell Common Stock pursuant to the Broker's Agreement unless (i) the
sale price per share is not less than $2.00 per share, plus any and
all brokerage commissions and other expenses and charges incurred in
connection with such sale, and (ii) Pledgor shall have made prior
arrangements satisfactory to Pledgee to pay all accrued interest on
the amount of such prepayment under the Note through the date such
prepayment is received by Pledgee, and (iii) Pledgor simultaneously
delivers to the Broker an irrevocable written instruction to the
Broker to remit promptly to Pledgee from the proceeds of such sale an
amount equal to $2.00 per share ("Release Price") for each Pledged
Share sold (the "Pledgee Proceeds"). Until the Pledgee Proceeds are
received by Pledgee, all proceeds of any such sale shall remain
Collateral subject to this Agreement. Upon remittance of the Pledgee
Proceeds for a sale to Pledgee, Pledgee shall promptly deliver an
irrevocable written instruction to the Broker to remit the balance of
the proceeds of such sale (the "Pledgor Proceeds") as instructed by
Pledgor, and such Pledgor Proceeds shall be automatically released
from the security interest of this Agreement.
(c) Adjustment of Release Price. The Release Price shall be
proportionately adjusted for any increase or decrease in the number of
issued and outstanding shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or
decrease in the number of issued and outstanding shares of Common
Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt
of consideration."
SECTION 8. Pledgee Appointed Attorney-in-Fact. Pledgor appoints
Pledgee as Pledgor's attorney-in-fact with full authority in the place
and stead of Pledgor and in the name of Pledgor or otherwise, from
time to time in Pledgee's discretion, to take any action and to
execute any instrument which Pledgee may deem necessary or advisable
to accomplish the purposes of this Agreement, including, without
limitation, and subject to the provisions of Section 6 hereof, to
receive, endorse and collect all instruments made payable to Pledgor
representing any dividend, interest payment or other distribution in
respect of the Collateral or any part thereof and to give full
discharge for the same.
SECTION 9. Pledgee May Perform. If any Event of Default occurs,
Pledgee may itself cure such Event of Default at Pledgor's sole
expense. Any expenses of Pledgee incurred under this Section 9 shall
be payable by Pledgor under Section 13.
SECTION 10. Reasonable Care. Pledgee shall be deemed to have
exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which Pledgee accords its own property, it
being understood that Pledgee shall have no responsibility for (i)
ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not Pledgee has or is deemed to have knowledge
of such matters, or (ii) taking any necessary steps to preserve rights
against any parties with respect to any Collateral.
SECTION 11. Remedies upon Default. If any Event of Default has
occurred and is continuing:
(a) Pledgee may exercise, in respect of the Collateral, all the
rights and remedies of a secured party under the Uniform Commercial
Code (the "Code") in effect in the State of Arizona at that time, in
addition to other rights and remedies provided for herein or otherwise
available to Pledgee, and Pledgee may also, without notice except as
specified below, cause the Collateral to be registered in the name of
Pledgee or its nominee, take possession of and sell the Collateral or
any part thereof in one or more lots at public or private sale, at any
exchange, broker's board or at any of Pledgee's offices or elsewhere,
for cash, on credit or for future delivery, and at such price or
prices and upon such other terms as are commercially reasonable.
Pledgor agrees that, to the extent notice of sale shall be required by
law, at least ten (10) days' notice to Pledgor of the time and place
of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. Pledgee shall not be
obligated to make any sale of Collateral regardless of notice of sale
having been given. Pledgee may adjourn any public or private sale
from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned.
(b) All cash proceeds received by Pledgee in respect of any sale
of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of Pledgee, be held by Pledgee as
collateral for, and/or then or at any time thereafter be applied
(after payment of any amounts payable to Pledgee pursuant to Section
13) in whole or in part against, all or any part of the Obligations in
such order as Pledgee shall elect. Any surplus of such cash or cash
proceeds held by Pledgee and remaining after payment in full of all
the Obligations shall be paid over to Pledgor or to whomsoever may be
lawfully entitled to receive such surplus.
(c) Pledgor agrees that in any sale of any of the Collateral,
Pledgee is thereby authorized to comply with any limitation or
restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including, without limitation, compliance with such procedures as may
restrict the number or suitability of prospective bidders and
purchasers and/or further restrict such prospective bidders or
purchasers to persons who will represent and agree that they are
purchasing for their own account for investment and not with a view to
the distribution or resale of such Collateral), or in order to obtain
any required approval of the sale or of the purchase by any
governmental regulatory authority or official, and Pledgor further
agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially
reasonable manner, nor shall Pledgee be liable or accountable to
Pledgor for any discount allowed by reason of the fact that such
collateral is sold in compliance with any such limitation or
restriction.
(d) Each and every right, remedy and power granted to Pledgee
hereunder shall be cumulative and in addition to any other right,
remedy or power specifically granted herein or now or hereafter
existing in equity, at law, by virtue of statute or otherwise and may
be exercised by Pledgee, from time to time, concurrently or
independently and at often and in such order as Pledgee may deem
expedient. Any failure or delay on the part of Pledgee in exercising
any such right, remedy or power, or abandonment or discontinuance of
steps to enforce the same, shall not operate as a waiver thereof or
affect the right of Pledgee thereafter to exercise the same, and any
single or partial exercise of any such right, remedy or power shall
not preclude any other or further exercise thereof or the exercise of
any other right, remedy or power, and no such failure, delay,
abandonment or single or partial exercise of rights of Pledgee
hereunder shall be deemed to establish a custom or course of dealing
or performance between the parties hereto.
SECTION 12. Cooperation With Sale. If Pledgee shall determine
to exercise Pledgee's right to sell all or any of the Collateral
pursuant to Section 11, Pledgor agrees that, upon request of Pledgee,
Pledgor will do or cause to be done all such other acts and things as
may be necessary to make such sale of the Collateral or any part
thereof valid and binding and in compliance with applicable law,
including, but not limited to, all applicable federal and state
securities laws.
SECTION 13. Expenses. Pledgor will upon demand pay to Pledgee
the amount of any and all reasonable expenses, including the
reasonable fees and expenses of Pledgee's counsel and of any experts
and agents, which Pledgee may incur in connection with (i) the custody
or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (ii) the exercise or
enforcement of any of the rights of Pledgee or (iii) the failure by
Pledgor to perform or observe any of the provisions hereof.
SECTION 14. Security Interest Absolute. All rights of Pledgee
and security interests under this Agreement, and all obligations of
Pledgor under this Agreement, shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of the Note or any
other agreement of instrument relating thereto;
(ii) any change in the time, manner or placer of payment of, or
in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the Note
or this Agreement;
(iii) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Obligations; or
(iv) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, Pledgor in respect of the
Obligations of this Agreement.
SECTION 15. Amendments, Etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure by Pledgor
from the terms of this Agreement, shall be effective unless it is in
writing and signed by Pledgee, and then such waiver or consent shall
be effective only in the specific instance and for the specific
purpose for which given.
SECTION 16. Notices. Any and all notices required by this
Agreement shall be personally delivered or sent by certified mail,
return receipt requested, or sent by machine confirmed facsimile
transmission, addressed to a party at his address set forth below, or
at such other address as he may designate to the other party in
accordance with this Paragraph. A notice shall be deemed effective
when delivered if personally delivered, four (4) business days
following mailing if sent by certified mail, return receipt requested,
and upon machine confirmation of transmission when sent by facsimile.
If to Pledgee:
ACX Technologies, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X.X. Xxxxxx, Esq.
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
If to Pledgor:
Xxxxxx X. Xxxxxxxx
00000 Xxxxx 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
with a copy to
Xxxxxx Xxxxx, Esq.
Xxxxx and Cotton, P.C.
000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
SECTION 17. Continuing Security Interest; Transfer of Notes.
This Agreement shall create a continuing security interest in the
Collateral and remain in full force and effect until payment in full
of the Note. This Agreement shall be binding upon Pledgor, and its
successors and assigns, and inure to the benefit of Pledgee and its
successors, transferees and assigns. Without limiting the generality
of the preceding sentence, Pledgee may assign or otherwise transfer
its interest in this Agreement to a transferee of the Note, in which
case such transferee shall automatically become vested with all of the
benefits of this Agreement. Upon the payment in full of the
Obligations, Pledgor shall be entitled to the prompt return, upon its
request and at its expense, of such of the Collateral as shall not
have been sold or otherwise applied pursuant to the terms hereof.
SECTION 18. Governing Law; Terms. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Arizona. Unless otherwise defined herein or in the Note, terms
defined in Article 9 of the Uniform Commercial Code as adopted in the
State of Arizona are used herein as defined therein.
SECTION 19. Nonrecourse Obligation. Notwithstanding any other
term or provision hereof, Pledgor shall have no personal liability to
pay any amounts due or to perform any obligations hereunder, Pledgee's
sole recourse, in the event of default, shall be to proceed against
the Collateral subject to this Pledge Agreement, and Pledgee shall not
seek or obtain a deficiency judgment or order against Pledgor
personally based upon the indebtedness secured hereby; provided,
however, that nothing contained in this paragraph shall affect or
impair the validity of the indebtedness evidenced by the Note or the
lien of this Agreement, or the right of the Pledgee to proceed against
the collateral subject to this Agreement following default in (a) the
making of any payment required to be made pursuant to the Note, or (b)
the performance of any of the obligations of Pledgor under the Note or
this Agreement; and provided, further, that notwithstanding the
foregoing, if Pledgee shall notify Pledgor after default that Pledgee
proposes to retain the collateral subject to this Agreement in
satisfaction of the obligations under the Note and Pledgor objects to
such proposal or otherwise acts to prevent Pledgee's retention of such
collateral, then Pledgor shall be and remain liable for any
deficiencies remaining after disposition of such collateral in
accordance with the Code and Pledgee may seek and obtain a deficiency
judgment against Pledgor personally therefor.
IN WITNESS WHEREOF, Pledgor and Pledgee have executed this
Agreement on the date hereof.
_______________________________
Xxxxxx X. Xxxxxxxx
Witness:
_______________________________
ACX Technologies, Inc.,
a Colorado corporation
By:______________________________
Its__________________
SPOUSAL CONSENT
The undersigned, Xxxxxxxxx X. Xxxxxxxx, hereby confirms that she
has read and understands the foregoing Stock Pledge Agreement and
consents and agrees to the terms to the extent that she may have any
interest therein and agrees that her spousal and community property
interest, as well as her sole and separate property, is irrevocably
bound by the Agreement.
Dated as of July 15, 1997.
_______________________________
XXXXXXXXX X. XXXXXXXX
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this, the ____ day of July, 1997, before me, the undersigned
Notary Public, personally appeared Xxxxxx X. Xxxxxxxx, known to me to
be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_______________________________
Notary Public
My Commission Expires:
_______________________________
STATE OF COLORADO )
) ss.
County of Jefferson )
On this, the ____ day of July, 1997, before me, the undersigned
Notary Public, personally appeared ______________, the __________ of
ACX Technologies, Inc., a Colorado corporation, known to me to be the
person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_______________________________
Notary Public
My Commission Expires:
_______________________________
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this, the ____ day of July, 1997, before me, the undersigned Notary
Public, personally appeared Xxxxxxxxx X. Xxxxxxxx, known to me to be
the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_______________________________
Notary Public
My Commission Expires:
_______________________________
Xxxxxxx Xxxxx Account Number _____________________
(To be assigned when the account is established with Xxxxxxx Xxxxx)
Xxxxxxx Xxxxx
Pledged Collateral Account Agreement
Note: This agreement is subject to the review and acceptance by
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
Date: July 15, 1997
Gentlemen:
Simultaneously with the execution of this agreement, the
undersigned Xxxxxx X. Xxxxxxxx (hereinafter "Assignor") and ACX
Technologies, Inc. (hereinafter "Assignee") entered into an agreement
pursuant to which a security interest in certain rights and assets of
the Assignor is granted by the Assignor to the Assignee (the
"Assignment"). In connection therewith, the Assignor hereby instructs
you to:
1) establish a cash security account, which is to be known as the
"Xxxxxx X. Xxxxxxxx Pledged Collateral Account for ACX Technologies,
Inc. ("Cash Account"); and
2) place the assets listed in Exhibit A attached hereto and made a
part hereof into the Cash Account.
The Assignor and the Assignee consent and agree that the only
Instructions that shall be given to Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx") in regard to or in connection
with the Cash Account shall be given by an Authorized Officer of
Assignor (as such term is hereafter defined), except as otherwise
provided herein.
An Authorized Officer of Assignor may give instructions of any
kind or character in regard to the Cash Account, oral or written,
except that:
1) any instruction to Xxxxxxx Xxxxx to deliver cash and/or
securities, or proceeds from the sale or, or distributions on, such
securities out of the Cash Account shall be made by a written
instrument on such effect which shall be executed by (a) an Authorized
Officer of Assignee and an Authorized Officer of Assignor or (b) an
Authorized Officer of Assignee who shall certify in writing that an
"Event of Default" exists as of the date thereof under the Assignment
(it being understood and agreed that Xxxxxxx Xxxxx shall have no duty
or obligation whatsoever of any kind or character to determine whether
or not an Event of Default exists) and provided further that Assignee
hereby agrees to indemnify and hold harmless Xxxxxxx Xxxxx, its
affiliates, officers and employees from and against any and all
claims, causes of action, liabilities, lawsuits, demands and/or
damages, including, without limitation, any and all court costs and
reasonable attorney's fees, that may result by reason of Xxxxxxx Xxxxx
complying with such instructions.
The Authorized Officer of Assignor who shall give oral
instructions hereunder shall confirm the same in writing to Xxxxxxx
Xxxxx within five (5) days after such oral instructions are given. So
long as this agreement remains in effect, Assignee shall be entitled
to receive duplicates of any and all notices and statements of account
that the Assignor of such a Cash Account is entitled to receive.
For purposes of this agreement, the term "Authorized Officer of
Assignor" shall refer to Xxxxxx X. Xxxxxxxx and the term "Authorized
Officer of Assignee" shall refer in the singular to either Xxx Xxxxxxx
(who is, on the date hereof, Chief Financial Officer of the Assignee)
or Xxxx X.X. Xxxxxx (who is, on the date hereof, Secretary of the
Assignee). If the Assignor or Assignee is a natural person then such
term shall mean the Assignor or Assignee respectively and, if more
than one natural person is the Assignor or Assignee, such natural
persons may act severally. In the even that either Assignor or
Assignee shall find it advisable to designate a replacement of either
of its Authorized Officers, written notice of any such replacement
shall be given to Xxxxxxx Xxxxx; provided, however, that such
replacement shall be either the President or then acting chief
executive officer of Assignor or Assignee, as the case may be, or such
other officer of the respective parties hereto as Xxxxxxx Xxxxx may
approve, which approval shall not be unreasonably withheld.
Notwithstanding anything to the contrary contained herein or in
the Assignment, this agreement shall not impose or create any
obligations or duties upon Xxxxxxx Xxxxx greater than or in addition
to the customary and usual obligations and duties of Xxxxxxx Xxxxx to
Assignor except and to the extent that Xxxxxxx Xxxxx shall henceforth
accept instructions in connection with the Cash Account as provided in
this agreement.
Assignor hereby agrees to indemnify and hold harmless Xxxxxxx
Xxxxx, its affiliates, officers and employees from and against any and
all claims, causes of action, liabilities, lawsuits, demands and/or
damages, including, without limitation, any and all court costs and
reasonable attorney's fees, in any way related to or arising out of or
in connection with the Assignment, this agreement and/or the Cash
Account.
This agreement shall be binding upon and inure to the benefit of
the successors and assigns of the respective parties hereto and shall
be construed in accordance with the laws of the State of New York
without regard to its conflict of law principles and the rights and
remedies of the parties shall be determined in accordance with such
laws.
Assignor and Assignee understand and acknowledge that this
agreement in and of itself does not create or perfect the Assignee's
security interest in the rights and assets of the Assignor.
Assignor and Assignee represent and warrant to Xxxxxxx Xxxxx that
the agreement and arrangement are in compliance with applicable law,
including, without limitation, the federal securities credit
regulations.
The Assignor acknowledges that this agreement supplements the
Assignor's existing agreement(s) with Xxxxxxx Xxxxx and in no way is
this agreement intended to abridge any rights that Xxxxxxx Xxxxx might
otherwise have.
IN WITNESS WHEREOF, the Assignor and Assignee have caused this
agreement to be executed by their duly authorized officers all as of
the day first above written.
Assignor:
By: Xxxxxx X. Xxxxxxxx
Title:_________________________
Signature:_____________________
Date: 7/15/97
Assignee:
By: ACX Technologies, Inc.
Title: Chief Financial Officer
Signature:_____________________
Date: 7/15/97
(Affix Corporate/Bank Seal)
ATTEST:
By:____________________________
Title:_________________________
RECEIPT ACKNOWLEDGED:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:____________________________ Date: ______________
Resident Vice President
By:____________________________ Date: ______________
Regional Administrative Manager
ADDENDUM TO THE PLEDGED COLLATERAL ACCOUNT
AGREEMENT
The Assignor and Assignee consent and agree that any interest
and/or dividends earned in pledged collateral account number
_______________ are not required to be held as collateral and can be
released to the Assignor. Therefore, please transfer all interest
and/or dividends as it accrues, in this account, to account number
_____________. All parties understand and acknowledge that this
addendum is subject to revocation by either party.
Assignor:
By: Xxxxxx X. Xxxxxxxx
Title:_________________________
Signature:_____________________
Date: 7/15/97
Assignee:
By: ACX Technologies, Inc.
Title: Chief Financial Officer
Signature:_____________________
Date: 7/15/97
(Affix Corporate/Bank Seal)
ATTEST:
By:____________________________
Title:_________________________
RECEIPT ACKNOWLEDGED:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:____________________________
Resident Vice President
Regional Administrative Manager
Exhibit A
The Assignor has placed the following assets into the Xxxxxx X.
Xxxxxxxx Pledged Collateral Account for ACX Technologies, Inc.,
account number __________________ (account number to be assigned when
the account is established with Xxxxxxx Xxxxx).
Quantity Description
1,000,000 shares of Common Stock of Photocomm, Inc.
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