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EXHIBIT 2
PLEDGE OF STOCK AGREEMENT
THIS PLEDGE OF STOCK AGREEMENT, is made this 9th day of December, 1997,
by Starion International Ltd having a mailing address X.X. Xxx 0000, Xxxxx,
XXX, (hereinafter referred to as the "Pledgor")
IN FAVOUR OF
B&I Lending, LLC, a Limited Liability Co. duly organized and validly
existing under the laws of the State of Delaware having its principal
administrative office located at 0000 Xxxxxxxxx Xxxx Xxxxxxx, XX 00000,
(hereinafter referred to as the "Lender").
W I T N E S S E T H:
WHEREAS, pursuant to a certain Loan Agreement, guaranteed by Pledgor,
dated 8/12/1997, executed by and between Lender and Pledgor (hereinafter
referred to as the "Loan Agreement", Lender has agreed, subject to the terms
and conditions specified therein, to make a loan in an amount of One Million
Five Hundred Thousand and 00/100 ($1,500,000.00) Dollars (hereinafter referred
to as the "Loan") for the purposes described in the Loan Agreement, including,
but not limited to, providing funds to enable Tristar draw down under the asset
based line of credit with Bank of New York; and
WHEREAS, said Loan shall be evidenced by a certain Note executed and
delivered to Lender by Obligor under the Loan Agreement in the aggregate
principal amount of One Million Five Hundred Thousand and 00/100 ($
1,500,000.00) Dollars (hereinafter referred to as the "Note"); and
WHEREAS, as an inducement to Lender to make the Loan to Pledgor, Lender
has required that Pledgor enter into and execute this Pledge of Stock Agreement
hereby assigning, pledging, conveying and granting to Lender, as collateral
security for the payment of all principal, interest and other sums, if any, due
and owning under the Note, a continuing Pledge, lien on and security interest
in and to all of the right, title and interest of Pledgor with respect to (i)
600,000 shares of the issued and outstanding class of common stock of Tristar
Corporation (hereinafter referred to as "Tristar") owned by Pledgor; and
WHEREAS, all words and terms not defined herein shall have the
respective meanings and be construed herein as provided in the Loan Agreement;
and
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE LOAN AND WITH KNOWLEDGE
THAT LENDER WOULD NOT MAKE THE LOAN BUT FOR THE PROMISES OF PLEDGOR HEREUNDER,
PLEDGOR BINDING ITSELF AND ITS SUCCESSORS HEIRS, LEGAL REPRESENTATIVES,
ADMINISTRATORS AND EXECUTORS, DOES HEREBY PROMISE, COVENANT AND AGREE AS
FOLLOWS:
1. Pledge. Upon the terms hereof, Pledgor hereby assigns conveys,
pledges and grants to Lender a continuing pledge, general lien on and security
interest in and to (hereinafter referred to as the "Security Interest") all of
the right, title and interest of Pledgor in and to all of the following
instruments and property (said instruments and property hereinafter referred to
as the "Collateral");
(i) 600,000 shares of Tristar Corporation common stock owned by
Pledgor, represented by Certificate No(s). RCDC 1086, tsar 0156, 0156,
0158 & 0159.
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(ii) Intentionally left blank.
(iii) Intentionally left blank.
(iv) Intentionally left blank.
(v) Any stock or other securities acquired by Pledgor or Pledgor's
designee with respect to, incident to our in lieu of any shares
described in subparagraph (i) through (iv) of this Paragraph 1 or with
respect to, incident to or in lieu of the Collateral (a) due to any
dividend, stock-split, stock dividend or distribution on dissolution, on
partial or total liquidation, or for any other reason, (b) in connection
with a reduction of capital, capital surplus or paid in surplus, (c) in
connection with any spin-off, split-off, reclassification, readjustment,
merger, consolidation, sale of assets, combination of shares or any
other plan of distribution affecting the company which has issued the
shares described in subparagraph (i) through (iv) of this Paragraph 1;
(vi) Any subscription or other rights or options issued in connection
with any shares described in subparagraph (i) through (iv) of this
Paragraph 1, and, if exercised by Pledgor, all new shares or other
securities so acquired by Pledgor, which shall immediately be assigned
and delivered to Lender and held under the terms of this Pledge of Stock
Agreement in the same manner as the shares originally pledged hereunder;
and
(vii) Any and all proceeds, monies, income and benefits arising from or
by virtue of, and all dividends and distributions (cash or otherwise)
payable and/or distributable with respect to, all or any of the shares
or other securities and rights and interests described in this Paragraph
1.
2. Obligations Secured. This Pledge of Stock Agreement and the
Security Interest granted hereunder, secure the following described obligations
(hereinafter referred to as the "Obligations"):
(i) Payment and Performance. The payment and performance by Pledgor
of all of the liabilities and obligations of the Obligers to Lender
under the provisions of the Loan Agreement and/or the Note, including,
without limitation, the payment of principal, interest and fees and the
Guaranty of said obligations made by the Guarantors; and
(ii) Costs and Expenses. All sums advanced or expenses or costs
incurred by Lender that are made or incurred pursuant to, or permitted
by, the terms of the Loan Agreement and/or the Note, plus interest
thereon at the rate specified in the Note (or if no rate is specified
therein at the maximum lawful rate) from the dates thereof until
reimbursed, such costs including, without limitation, all costs incurred
by Lender to obtain, preserve and enforce this Pledge of Stock
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Agreement, collect the obligations, and maintain and preserve the
Collateral, including specifically, but without limitation, all taxes,
assessments, reasonable attorneys' fees, other legal expenses of sale
(it being expressly understood that Lender at its option may, but shall
not be obligated to Pledgor or any other person to make such advances).
3. Delivery of Collateral. All certificates, securities or
instruments representing or evidencing the Collateral shall be delivered to and
held by or on behalf of Lender pursuant to the terms of this Pledge of Stock
Agreement, and said delivered Collateral shall be in suitable form for transfer
by delivery by or shall be accompanied by duly executed instruments of transfer
or assignment in xxxxx, all in form and substance satisfactory to Lender.
Lender 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 Lender or any of
Lender's nominees, any or all of the Collateral, subject only to the revocable
rights specified in Paragraph 7 hereof. In addition, Lender shall have the
right at any time to exchange certificates or instruments representing or
evidencing the Collateral for certificates or instruments of smaller or larger
denominations.
4. Representations and Warranties. Pledgor represents and warrants
to Lender that: (i) the 600,000 shares of Tristar Corporation common stock
owned by Pledgor, are all authorized, issued and outstanding shares of
Tristar's common stock. (ii) Intentionally left blank; (iii) Intentionally left
blank; (iv) Intentionally left blank; (v) Pledgor is the legal and/or
beneficial owned of the Collateral and that the shares of common stock
described in subparagraphs (i) through (vii) of Paragraph 1 of this Pledge of
Stock Agreement are share of and are owned and/or controlled by Pledgor; (vi)
the Collateral is duly authorized and issued, fully paid, and nonassessable,
and all documentary, stamp, or other taxes or fees owning in connection with
the issuance, transfer and/or pledge thereof hereunder have been paid and will
be hereafter aid by Pledgor as same become due and payable; (vii) no dispute,
right of setoff, counterclaim or defense exists with respect to all or any part
of the Collateral; (viii) all of the shares of the Collateral are owned or
controlled by Pledgor free of any pledge, mortgage, hypothecation, lien,
charge, encumbrance or security interest in such shares or the proceeds
thereof; (ix) there are no restrictions upon the transfer, hypothecation or
pledge of any of the shares constituting the Collateral; (x) Pledgor has the
right to pledge, transfer and hypothecate the Collateral free of any
encumbrances and without obtaining the consent of the other shareholders; (xi)
the execution and delivery of this Pledge of Stock Agreement, and the
performance of its terms, will not, or violate or constitute a default under
the terms of any agreement, indenture or other instrument, license, judgement,
decree, order law, statute, ordinance or other governmental rule or
regulation, application to the Pledgor or any of its property; and (xii) upon
delivery of the Collateral to Lender, this Pledge of Stock Agreement creates a
valid first lien upon and perfected security interest in the Collateral, and
the proceeds thereof, subject to no prior security interest, lien, charge,
encumbrance or agreement purporting to grant any third party a security
interest in the property or assets of Pledgor which would include the
Collateral.
5. Covenants. Pledgor further covenants and agrees to do the
following, all at its own cost and expense:
(i) from time to time promptly execute, assign, endorse and
deliver to Lender all Collateral which may now or hereafter come into
its possession and all proxies, applications, acceptances,
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stock powers, chattel paper, documents, instruments or other evidences
of payment or writing constituting or relating to any of the Collateral,
and all such other assignments, certificates, supplemental writings, and
financing statements and do all other acts or things as Lender may
reasonably request in order to, or more fully to, evidence and perfect
the Security Interest;
(ii) to promptly furnish Lender with any information or writings which
Lender may reasonably request concerning the Collateral;
(iii) to allow Lender to inspect all records of Pledgor relating to the
Collateral or to the Obligations, and to make and take away copies of
such records during normal business hours;
(iv) to promptly notify Lender of any material change in any fact or
circumstances warranted or represented by Pledgor in this Pledge of
Stock Agreement or in any other writing furnished by Pledgor to Lender
in connection with the Collateral or the Obligations;
(v) to promptly notify Lender of any claim, action or proceeding
affecting title to the Collateral, or any part thereof, or the Security
Interest, and at the request of Lender, appear in and defend, at
Pledgor's own cost and expenses, any such action or proceedings;
(vi) to promptly pay to Lender the amount of all court costs and
reasonable attorneys' fees incurred by Lender hereunder; and
(vii) not to permit the issuance of any additional Class common stock
of TRISTAR CORP., and to vote against such issuance Pledgor further
covenants and agrees that, without the prior express written consent of
Lender, Pledgor shall not transfer Pledgor's rights in the Collateral,
or permit any of the Collateral to ever be or become subject to any
lien, attachment, execution, sequestration, other legal or equitable
process, or any lien or encumbrance of any kind, except for presently
existing liens noted above. All assignments and endorsements by
Pledgor shall be in such form and substance as may be satisfactory to
Lender.
(viii) not to permit the issuance of any replacement certificates for
any of the Collateral.
6. Adjustments and Distributions Concerning Collateral. Should the
Collateral, or any part thereof, ever be converted in any manner by its issuer
into another type of property or any money or other proceeds ever be paid or
delivered to Pledgor as a result of Pledgor's rights in the Collateral, then in
any such event (except as provided in Paragraph 7 hereof), all such property,
money and other proceeds shall immediately be and become part of the
Collateral, and Pledgor covenants to forthwith pay and deliver all money so
received to Lender; and, if Lender deems it necessary and so requests, to
properly endorse or assign any and all such other proceeds to Lender and to
deliver to Lender any and all such other proceeds which require perfection by
possession under the Uniform Commercial Code of the State of Texas or other
appropriate jurisdiction (hereinafter referred to as the "UCC"). With
respect to any of such property of a kind requiring an additional security
agreement, financing statement or other writing to perfect a security interest
therein in favour of Lender, Pledgor will forthwith execute and deliver to
Lender whatever Lender shall deem necessary or proper for such purposes.
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7. Voting Rights; Dividends; Etc.
(i) So long as no "Event of Default" (as defined in Paragraph 8
hereof) or event which, with the giving of notice or the passage of
time, or both, would become an Event of Default, shall have occurred and
be continuing;
(a) Pledgor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Collateral or any part
thereof for any purpose not inconsistent with the terms of this Pledge
of Stock Agreement, the Loan Agreement and the Note; provided, however,
that Pledgor shall not exercise or refrain from exercising any such
right if, in Lender's reasonable judgement, such action would have a
material adverse effect on the value of the Collateral or any part
thereof; and, provided, further, that Pledgor shall give Lender at least
five (5) days' prior express written notice of the manner in which it
intends to exercise, or the reasons for refraining from exercising, any
such right.
(b) Pledgor shall be entitled to receive and retain any and
all dividends paid in respect of the Collateral; provided, however, that
any and all
(1) dividends 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,
(2) dividends and other 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
(3) cash paid, payable or otherwise distributed in
respect of principal of, or in redemption of, or in exchange for,
any Collateral, shall be, and shall be forthwith delivered to
Lender to hold as, Collateral, and shall, if received by Pledgor,
be received in trust for the benefit of Lender, be segregated
from the other property or funds of Pledgor, and be forthwith
delivered to Lender as Collateral in the same form as so received
(with any necessary endorsement).
(c) Lender shall execute and deliver (or cause to be executed
and delivered) to Pledgor all such proxies and other instruments as
Pledgor may reasonable request for the purpose of enabling Pledgor to
exercise the voting and other rights which it is entitled to exercise
pursuant to paragraph (a) above and to receive the dividends or interest
payments which it is authorized to receive and retain pursuant to
paragraph (b) above.
(ii) Upon the occurrence and during the continuance of any "Event of
Default" (as defined in Paragraph 8 hereof) or an event which, with the
giving of notice or the lapse of time, or both, would become an Event of
Default:
(a) All rights of Pledgor to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise
pursuant to Paragraph (i) and to receive the dividends and interest
payments which it would otherwise be authorized to receive and retain
pursuant to Paragraph (i) shall cease, and all such rights shall
thereupon become vested in Lender who shall
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thereupon have the sole right to exercise such voting and other
consensual rights and to receive and hold as Collateral such dividends
and interest payments.
(b) All dividends and interest payments which are received by
Pledgor contrary to the provisions of subparagraph (a) of this Paragraph
(ii) shall be received in trust for the benefit of Lender, shall be
segregated from other funds of Pledgor and shall be forthwith paid over
to Lender as Collateral in the same form as so received (with any
necessary endorsement or instrument of transfer).
8. Default. Pledgor shall be in default under this Pledge of Stock
Agreement upon the happening of any of the following events or conditions
(hereinafter referred to as an "Event of Default"):
(i) The occurrence of an "Event of Default" as defined in the Loan
Agreement ; and
(ii) The filing of any financing statement with regard to the
Collateral, other than relating to or permitted by this Pledge of Stock
Agreement, or the attachment of any additional lien to any portion of
the Collateral, for the benefit of any Person other than Lender.
9. Registration of Collateral in Name of Lender. At any time after
the occurrence of an Event of Default Lender, at its option, may have any or
all of the Collateral registered in its name or that of its nominee, and
Pledgor hereby covenants that, upon Lender's request, Pledgor will cause the
issuer of the Collateral to effect such registration. Immediately and without
further notice, upon the occurrence of an Event of Default, whether or not the
Collateral shall have been registered in the name of Lender or its nominee,
Lender or its nominee shall have, with respect to the Collateral, the right to
exercise all voting rights as to all shares subject to the Security Interest
and, as to all of the Collateral, all other corporate rights and all
conversion, exchange, subscription or other rights, privileges or options
pertaining thereto as if it were the absolute owner thereof, including, but not
limited to, the right to exchange any or all of the Collateral upon the merger,
consolidation, reorganization, recapitalization or other readjustment of the
issuer thereof, or upon the exercise by such issuer of any right, privilege, or
option pertaining to any of the Collateral, and, in connection therewith, to
deliver any of the Collateral to any committee, depository, transfer agent,
registrar or other designated agency upon such terms and conditions as it may
determine, all without liability except to account for property actually
received by it; but Lender shall have no duty to exercise any of the aforesaid
rights, privileges or options and shall not be responsible to Pledgor or any
other person for any failure to do so or delay in doing so. Thereafter, at
such times as (i) all Events of Default have been cured, and (ii) there exists
no condition, event or act which, with the giving of notice or lapse of time,
or both, would constitute an Event of Default, then the right to exercise all
voting rights with respect to the Collateral shall revert to Pledgor. Upon any
sale or other disposition, Lender 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 Lender) 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, to the extent permitted by law, which
it had or may have under any rule of law or stature now existing or hereafter
adopted.
10. Remedies Upon Default. Upon the occurrence of an Event of
Default, in addition to any and all other rights and remedies which Lender may
then have hereunder, under the UCC or otherwise, to the extent permitted by
law, Lender may at its option do any one or more of the following, without
liability to the Pledgor, except to account for property actually received by
it; (i) transfer to or register in its name or the name of its nominees (if
the same has not already been done) any of the Collateral with
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or without indication of the security interest herein created, and whether or
not so transferred or registered, receive the income, dividends and other
distributions thereon and hold them or apply them to the Obligations in any
order of payment; (ii) exercise or cause to be exercised all voting and
corporate powers with respect to any of the Collateral so registered or
transferred, including all rights to conversion exchange, subscription or any
other rights, privileges or options pertaining to such Collateral, as if the
absolute owner thereof; (iii) insure any of the Collateral; (iv) exchange any
of the Collateral for other property upon a reorganization, recapitalization or
other readjustment and, in connection therewith, deposit any of the Collateral
with any committee or depository upon such terms as Lender may determine; (v)
in its name or in the name of Pledgor demand, xxx for, collect or receive any
money or property at any time payable or receivable on account of or in
exchange for any of the Collateral and, in connection therewith, endorse notes,
checks, drafts, money orders, documents of title or other evidences of payment,
shipment or storage in the name of Pledgor; (vi) make any compromise or
settlement deemed advisable with respect to any of the Collateral; (vii) renew,
extend, or otherwise change the terms and conditions of any of the Collateral
or the Obligations; (viii) take or release any other collateral as security for
any of the Collateral or the Obligations; (ix) add or release any guarantor,
endorser, surety or other party to any of the Collateral or the Obligations;
(x) reduce its claim to judgement or foreclose or otherwise enforce the
Security Interest, in whole or in part, by any available judicial procedure;
(xi) without demand of performance or other demand, advertisement or notice of
any kind (except the notice specified below of time and place of public or
private sale) to or upon Pledgor or any other person (all of which are, to the
extent permitted by law, hereby expressly waived), forthwith realize upon the
Collateral or any part thereof, and may forthwith , or agree to, sell or
otherwise dispose of or deliver the Collateral or any part thereof or interest
therein, in a commercially reasonable manner, in one or more parcels at public
or private sale or sales, at any exchange, broker's board or at Lender's
principal administrative office 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 purchase the shares constituting the Collateral for
investment without any intention to make any distribution thereof and subject
to other restrictions as may be appropriate or necessary under applicable law)
as it may deem best, for cash or on credit, or for future delivery without
assumption of any credit risk, with the right of Lender or any purchaser to
purchase upon any such sale the whole or any part of the Collateral free from
any right or equity or redemption in Pledgor, which apply by appropriate
judicial proceedings for appointment of a receiver for the Collateral, or any
part thereof, and Pledgor hereby consents to any such appointment; (xii) at its
discretion, retain the Collateral in satisfaction of the Obligations whenever
the circumstances are such that Lender is entitled to do so under the UCC or
otherwise; and (xiii) exercise any and all other rights it may have hereunder
or under the UCC or otherwise. Pledgor hereby grants to Lender an irrevocable
proxy for the Collateral pursuant to which proxy Lender shall be entitled to
vote or consent in its discretion upon the occurrence of an Event of Default
and in such event Pledgor agrees to deliver to Lender such further evidence of
the grant of such proxy as Lender may request.
The proceeds of any disposition of the Collateral or other action by the
Secured Party shall be applied as set forth in the Note and/or the Loan
Agreement.
Lender shall be under no duty to Pledgor or any other person to exercise
or to withhold the exercise of any of the rights, powers, privileges and
options expressly or implicitly granted to the Lender in this Pledge of Stock
Agreement, and shall not be responsible to Pledgor or any other person for any
failure to do so or delay in so doing.
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11. Securities Laws; Consents: Etc.
(i) Pledgor covenants and agrees that, because of the Securities Act
of 1933, as amended (hereinafter referred to as "Securities Act"), or
any other laws or regulations, and for other reasons, there may be legal
and/or practical restrictions or limitations affecting Lender in any
attempt to dispose of all or certain portions of the Collateral and for
enforcement of its rights, for these reasons, Lender is hereby
authorized by Pledgor, but not obligated, in the event of the occurrence
of an Event of Default, to sell all or any part of the Collateral at
private sale, subject to investment letter, or in any other manner which
will not require the Collateral, or any part thereof, to be registered
in accordance with the Securities Act, or the rules and regulations
promulgated thereunder, or any other laws or regulations, or which will
permit the Collateral to be sold in a manner which will not violate any
applicable laws or regulations, at the best price reasonably
obtainable by Lender at such private sale or other disposition in the
manner mentioned above. Pledgor understands that Lender may, in its
discretion, approach a restricted number of potential purchasers and
that a sale under such circumstances may yield a lower price for the
Collateral, or any part or parts thereof, than would otherwise be
obtainable if same were either offered to a large number of potential
purchasers, or registered and sold in the open market. Lender agrees
that such private sales shall be made in a commercially reasonable
manner and that Lender has not obligation to delay sale of any
Collateral to permit the issuer thereof to register it for public sale
under any applicable federal or state securities law. 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 all or any part 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.
(ii) In the event that Lender should determine that a sale of the
Collateral by private sale, as described in subparagraph (i) of this
Paragraph 11, is not in Lender's best interest, then Pledgor shall upon
the written request of Lender, at Pledgor's own cost and expense:
(a) execute and deliver, and cause each issuer of the
Collateral contemplated to be sold and the directors and officers
thereof to execute and deliver, all such instruments and documents, and
do or cause to be done by them all such other acts and things, as may
be necessary or, in the opinion of Lender, advisable to register such
Collateral under the provisions of the Securities Act, and to use their
best efforts to cause the registration statement relating thereto to
become effective and to remain effective for such period as prospectuses
are required by law to be-furnished, and to make all amendments and
supplements thereto and to the related prospectus which, in the opinion
of Lender, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto;
(b) use its best efforts to quality the Collateral under the
state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Collateral, as requested by
Lender;
(c) use its best efforts to cause each such issuer to make
available to its security holders, as soon as practicable, an earning
statement which will satisfy the provisions of Section 11 (a) of the
Securities Act; and
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(d) 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.
Pledgor further acknowledges the impossibility of ascertaining the
amount of damages which would be suffered by Lender by reason of the failure by
Pledgor to perform and of the covenants contained in this Paragraph 11 and,
consequently, agrees that, if Pledgor shall fail to perform any of such
covenants, it shall pay, as liquidated damages and not as a penalty, an amount
equal to the value of the Collateral on the date Lender shall demand
compliance with this Paragraph 11 (which amount shall not exceed the sum owed
to Lender under the Note, the Loan Agreement and this Pledge of Stock
Agreement).
12. Notification of Sale. Reasonable notification of the time and
place of any public sale of the Collateral, or reasonable notification of the
time after which any private sale or other intended disposition of the
Collateral is to be made, shall be sent to Pledgor and to any other person
entitled under the UCC to notice; provided that, to the extent permitted by
law, if any of the Collateral threatens to decline speedily in value or is of
the type customarily sold on a recognized market, Lender may sell or otherwise
dispose of the Collateral without notification, advertisement, or other notice
of any kind. It is agreed that notice sent or given not less than five (5)
calendar days prior to the taking of the action to which the notice relates is
reasonable notification and notice for the purposes of this Paragraph 12.
13. Satisfaction of Obligations. Upon the satisfaction in full of
all Obligations and the satisfaction of all additional costs and expenses of
Lender as provided herein, this Pledge of Stock Agreement shall terminate, and
Lender shall deliver to Pledgor, at Pledgor's expenses, such of the Collateral
in Lender's possession as shall not have been sold or otherwise applied
pursuant to this Pledge of Stock Agreement.
14. Notices. Unless otherwise indicated differently, all notices,
payments, requests, reports, information or demands which any party hereto may
desire or may be required to give to any other party hereunder, shall be in
writing and shall be personally delivered or sent by telex (answer back
received), or first-class certified or registered United States mail, postage
prepaid, return receipt requested and sent to the party at its address
appearing below or such other address as any party shall hereafter inform the
other party hereto by written notice given as aforesaid:
If to Pledgor: STARION INTERNATIONAL
X.X. XXX 0000
XXXXX, X.X.X.
Attn: Xx. Xxxxxx
With a copy to:
-------------------------
-------------------------
-------------------------
If to Lender: B& I Lending, LLC
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
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With a copy to : Xxxxxx, Xxxxx & Xxxxxxx
000 Xxxxxxxxx Xxxxxx Xxxxxx XX
Xxxxx 0000
Marquis Xxx Xxxxx
Xxxxxxx, XX 00000
ATTN : Xxxxx Xxxxxxx
All notices, payments, requests, reports, information or demands so given shall
be deemed effective upon receipt or, if mailed, upon receipt or the expiration
of the third day following the date of mailing, whichever occurs first, except
that any notice of change in address shall be effective only upon receipt by
the party to whom said notice is addressed. A failure to send the requisite
copies does not invalidate an otherwise properly sent notice to the Pledgor
and/or the Lender.
15. Lender Appointed Attorney-in Fact. Pledgor hereby appoints
Lender 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
Lender's discretion, to take any action and to execute any instrument which
Lender may deem necessary or advisable to accomplish the purposes of this
Pledge of Stock Agreement, including, without limitation, to receive, endorse
and collect all instruments made payable to Pledgor representing any dividend,
interest payment or other distribution in respect of Collateral or any part
thereof and to give full discharge for the same.
16. Reasonable Care. Lender 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 Lender accords its own property, it being understood that Lender shall
not have any 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 Lender 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.
17. Financing Statement. Lender shall have the right at any time to
execute and file this Pledge of Stock Agreement as a financing statement, but
the failure of Lender to do so shall not impair the validity or enforceability
of this Pledge of Stock Agreement.
18. Successors and Assigns. This Pledge of Stock Agreement shall be
binding upon and inure to the benefit of Pledgor and Lender, and their
respective successors and, assigns, heirs, legal representatives,
administrators and executors; provided, that Pledgor may not, without the prior
express written consent of Lender, assign any rights, powers, duties or
obligations hereunder.
19. Remedies Cumulative. The rights and remedies provided herein,
the Note, the Loan Agreement and all other agreements, instruments and
documents pertaining hereto or thereto (hereinafter collectively referred to as
the "Loan Documents"), are cumulative and are in addition to and not exclusive
of any rights or remedies provided by law, including, but without limitation,
the rights and remedies of a secured party under the UCC.
20. Amendment. This Pledge of Stock Agreement may be amended only by
written instrument signed by both parties.
11
21. Course of Dealing. No course of dealing between the Pledgor and
Lender or any other person, nor any failure to exercise, nor any delay in
exercising, any right, power or privilege of Lender hereunder or under any of
the Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or thereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
22. Invalidity of Any Provision. The invalidity of any one or more
phrases, sentences, clauses, paragraphs or sections hereof shall not affect the
remaining portions of this Pledge of Stock Agreement, all of which are being
inserted conditionally on their being held legally valid. In the event that
any one or more of the phrases, sentences, clauses, paragraphs or sections
contained herein should be invalid, or should operate to render this Pledge of
Stock Agreement invalid, then this Pledge of Stock Agreement shall be construed
as if such invalid phrase or phrases, sentence or sentences, clause or clauses,
paragraph or paragraphs, or section or sections had not been inserted.
23. Governing Law. This Pledge of Stock Agreement is intended to be
performed in the State of Georgia, and the substantive laws of the State of
Georgia shall govern the validity, construction, enforcement and interpretation
of this Pledge of Stock Agreement, except to the extent that the validity or
perfection of the security interest hereunder, or remedies hereunder, in
respect of any particular Collateral are governed by the laws of a jurisdiction
other than the State of Georgia.
24. Assignment Of Collateral by Lender. Lender may assign all or any
part of the Obligations and may assign, transfer, or deliver to any transferee
of any of the Obligations, any or all of the Collateral, and thereafter Lender
shall be fully discharged from all responsibility with respect to the
Collateral so assigned, transferred or delivered. Such transferee shall be
vested with all the powers and rights of Lender hereunder with respect to such
Collateral.
25. Restrictive Legend. Upon the execution of this Pledge of Stock
Agreement, the Pledgor shall cause each certificate of the common stock pledged
to be endorsed as follows:
"NOTICE IS HEREBY GIVEN that the sale, assignment, transfer, pledge, or
other disposition of the shares of capital stock represented by this
certificate are subject to a certain Pledge of Stock Agreement from Starion to
B&I Lending, LLC (the "Lender"), a copy of which agreement is on file in the
office of the Lender."
26. Will: Estate: This Pledge of Stock Agreement shall be binding
upon the parties, their heirs, legal representatives, successors, and assigns.
Each Pledgor in furtherance thereof shall execute a will directing his
executor to perform this Pledge of Stock Agreement and to execute all documents
necessary to effectuate the purposes of this Pledge of Stock Agreement, but
the failure to execute such will shall not affect the rights of the Lender or
the obligations of any estate, as provided in this Pledge of Stock Agreement.
IN WITNESS WHEREOF, Pledgor has caused this Pledge of Stock Agreement to
be duly executed, witnessed and delivered, all as of the day and year first
above written.
WITNESS: STARION INTERNATIONAL LTD.
XXXXXXXX X. XXXXX
----------------------------------
Xxxxxx MP Sd/- XXXXXXXX X. XXXXX
(Director)
12
THIS AGREEMENT HAS BEEN AMENDED AND SHOULD BE READ ALONG WITH THE
AMENDMENT.
XXXXXXXX X. XXXXX
----------------------------------
STARION INTERNATIONAL LTD. XXXXXXXX X. XXXXX
(Director)
WHEREAS, Lender acknowledges that it has received from Pledgor all of
the shares of capital stock described in Paragraph 1 of this Pledge of Stock
Agreement.
B & I LENDING, LLC
By: /s/
-------------------------------
Name:
-----------------------------
AMENDMENT TO PLEDGE OF STOCK AGREEMENT
between B&I Financial Inc. and Starion International Ltd., dated 9th December,
1997 ("Main Agreement"),
1.
Add:
"Notwithstanding anything to the contrary in the Main Agreement, B&I shall
return back to Starion excess pledged shares remaining after the dues of B&I
under the main agreement are satisfied in the event the Pledge is foreclosed".
2.
Amend:
Page 6 Clause 5 (vii) Lines 1 & 2
"In the event Starion votes for issuance of additional common Stock of Tristar
Corp, Starion shall restore the Status Quo immediately prior to such issuance
in terms of market value of the pledged shares by topping the pledge with
additional shares if necessary."
This amendment dated 9/12/1997 forms a part of the Main Agreement and shall be
kept attached to it.
sd/-
B&I LENDING INC. STARION INTERNATIONAL LTD.
By:/s/ By: XXXXXXXX XXXXXXX XXXXX
----------------------------- ------------------------------
Name: Xxxxxxxx Xxxxxxx Xxxxx
-------------------------- (Director)
