1
PLEDGE AGREEMENT
This Pledge Agreement (this "Pledge Agreement") is made and entered
into as of _________, 1999, by Austin Xxxxxxx.xxx Corporation, a Nevada
corporation ("Pledgor") in favor of Norwest Bank Texas, N.A. as trustee (herein,
"Trustee") on behalf of the holders ("Holders") of Pledgor's 8% Secured
Subordinated Debentures Due 2015 (the "Debentures"), as more particularly
described in that certain Indenture between Pledgor and Trustee dated _________,
1999, as it may be amended from time to time (the "Indenture").
WITNESSETH:
WHEREAS, Pledgor is the owner of that certain non-callable United
States government zero coupon security in the face amount of $10,000,000,
evidence of which is attached hereto and incorporated herein by reference as
Exhibit "A" (the "Bond"); and .
WHEREAS, Pledgor and Trustee have entered into the Indenture; and
WHEREAS, the terms of the Indenture require, among other things, that
Pledgor execute and deliver this Pledge Agreement in order to secure the payment
and performance by Pledgor of Pledgor's obligations to Holders of the
Debentures.
AGREEMENT
NOW THEREFORE, in consideration of the premises and in order to induce
the Trustee to enter into the Indenture, Pledgor hereby agrees with Trustee as
follows:
SECTION 1. Pledge. Pledgor hereby pledges to Trustee, and grants to
Trustee a continuing first priority security interest in all of its right, title
and interest in the Bond and all products and proceeds of the Bond, including,
without limitation, all cash, options, rights, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Bond (the "Pledged Collateral").
SECTION 2. Security for Debentures. This Pledge Agreement and the
"Entitlement Documents" (as hereinafter defined) secure the prompt and complete
payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of Pledgor's obligation to pay interest and principal with respect to
the Debentures.
SECTION 3. Perfection of Security Interest in Pledged Collateral. On or
before the date hereof, Pledgor has (i) perfected Trustee's security interest in
the Pledged Collateral through either (a) delivery to the Trustee of a
certificated security representing ownership of the Bond, along with an
appropriate security power therefor, or (b) designating Trustee as the
entitlement holder (as such term is defined in Section 8.102 of the Texas
Business & Commerce Code, as amended, as in effect on the date hereof [the
"TBCC"]) to the issuer of the Bond (such applicable instrument(s) herein,
collectively, the "Entitlement Documents");
1
2
and (ii) delivery of an appropriate "Entitlement Order" (as such term is defined
in Section 8.102(a)(8) of the TBCC) to Trustee and the issuer of the Bond.
Notwithstanding the form of the Pledged Collateral, Pledgor and the
Trustee acknowledge and agree that, at all times during the term of this Pledge
Agreement, all certificates or instruments representing or evidencing the
Pledged Collateral shall be delivered to and held by Trustee on behalf of the
Holders pursuant hereto, or shall be held by the Bond issuer pursuant to
appropriate Entitlement Documents and Entitlement Order(s), and shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to Trustee.
SECTION 4. Representations and Warranties. Pledgor hereby makes all
representations and warranties, and agrees to comply with all of the
obligations, requirements and restrictions in the covenants and agreements,
applicable to Pledgor contained in the Indenture. Pledgor further represents and
warrants that:
(a) The execution, delivery and performance by Pledgor of this Pledge
Agreement is within Pledgor's powers, has been duly authorized by all necessary
action, and does not contravene, or constitute a default under, any provision of
applicable law or regulation or of any agreement, judgment, injunction, order,
decree or other instrument binding upon Pledgor or result in the creation or
imposition of any lien on any assets of Pledgor.
(b) Pledgor's purchase of the Bond was duly authorized.
(c) Pledgor is the legal, record and beneficial owner of the Pledged
Collateral, free and clear of any lien or claims of any person or entity except
for the security interest created by this Pledge Agreement.
(d) Pledgor has full power and authority to enter into this Pledge
Agreement and has the right to grant a security interest in the Pledged
Collateral as provided by this Pledge Agreement.
(e) This Pledge Agreement has been duly executed and delivered by
Pledgor and constitutes a legal, valid and binding obligation of Pledgor,
enforceable against Pledgor in accordance with its terms, except as such
enforceability may be limited by the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or general principles of equity.
(f) Upon the delivery and filing, as applicable, of the Entitlement
Documents, the Entitlement Order(s) and the Pledged Collateral in accordance
with the provisions of this Pledge Agreement and (as to certain proceeds of the
Pledged Collateral) the filing of Uniform Commercial Code (the "UCC") financing
statements, the pledge of the Pledged Collateral pursuant to this Pledge
Agreement creates a valid and perfected first priority security interest in the
Pledged Collateral, securing the payment of the Debentures in accordance with
the terms
2
3
and provisions of the Indenture for the benefit of the Holders, and enforceable
as such against all creditors of Pledgor.
(g) No consent of any other person or entity and no consent,
authorization, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required either (i) for the pledge
by Pledgor of the Pledged Collateral pursuant to this Pledge Agreement or for
the execution, delivery or performance of this Pledge Agreement by Pledgor, or
(ii) for the exercise by Trustee of the rights provided for in this Pledge
Agreement or the remedies in respect of the Pledged Collateral pursuant to this
Pledge Agreement (except as may be required in connection with such disposition
by laws affecting the offering and sale of securities).
(h) No litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the best knowledge of
Pledgor, threatened by or against Pledgor or against any of its properties or
revenues with respect to this Pledge Agreement or any of the transactions
contemplated hereby.
(i) The pledge of the Pledged Collateral pursuant to this Pledge
Agreement is not prohibited by any applicable law or governmental regulation,
release, interpretation or opinion of the Board of Governors of the Federal
Reserve System or other regulatory agency (including, without limitation,
Regulations G, T, U and X of the Board of Governors of the Federal Reserve
System).
(j) All information set forth herein relating to the Pledged Collateral
is accurate and complete in all respects.
SECTION 5. Further Assurance. Pledgor will, promptly upon request by
Trustee, execute and deliver or cause to be executed and delivered, or use its
best efforts to procure, all assignments, instruments and other documents, all
in form and substance satisfactory to Trustee, deliver any instruments to
Trustee and take any other actions that are necessary or, in the reasonable
opinion of Trustee, desirable to perfect, continue the perfection of or protect
the first priority of Trustee's security interest in, the Pledged Collateral, to
protect the Pledged Collateral against the rights, claims or interests of third
persons or to effect the purposes of this Pledge Agreement. Pledgor also hereby
authorizes Trustee to file any financing or continuation statements, or
Entitlement Orders, with respect to the Pledged Collateral without the signature
of Pledgor to the extent permitted by applicable law. Pledgor will pay all costs
incurred in connection with any of the foregoing.
SECTION 6. Power of Attorney. Subject to the provisions of the
Indenture, Pledgor hereby appoints and constitutes Trustee as Pledgor's
attorney-in-fact to exercise all of the following powers upon and at any time
after the occurrence of an Event of Default: (i) collection of proceeds of any
Pledged Collateral; (ii) conveyance of any item of Pledged Collateral to any
purchaser thereof; (iii) giving of any notices or recording of any liens under
Section 5 hereof; (iv) making of any payments or taking any acts under Section 7
hereof and
3
4
(v) paying or discharging taxes or liens, levied or placed upon or threatened
against the Pledged Collateral, the legality or validity thereof and the amounts
necessary to discharge the same to be determined by Trustee in its sole
discretion, and such payments made by Trustee to become the obligations of
Pledgor to Trustee, due and payable immediately without demand. Trustee's
authority hereunder shall include, without limitation, the authority to endorse
and negotiate, for Trustee's own account, any checks or instruments in the name
of Pledgor, execute and give receipt for any certificate of ownership or any
document, transfer tide to any item of Pledged Collateral, sign Pledgor's name
on all Entitlement Documents, Entitlement Orders, financing statements or any
other documents deemed necessary or appropriate to preserve, protect or perfect
the security interest in the Pledged Collateral and to file the same, prepare,
file and sign Pledgor's name on any notice of lien, and prepare, file and sign
Pledgor's name on a proof of claim in bankruptcy or similar document against any
customer of Pledgor, and to take any other actions arising from or incident to
the powers granted to Trustee in this Pledge Agreement. This power of attorney
is coupled with an interest and is irrevocable by Pledgor.
SECTION 7. Agent May Perform. If Pledgor fails to perform any agreement
contained herein, Trustee may itself perform, or cause performance of, such
agreement and the reasonable expenses of Trustee incurred in connection
therewith shall be payable by Pledgor under Section 9 hereof.
SECTION 8. Remedies Upon Default. If any Event of Default shall have
occurred and be continuing, Trustee shall have all of the rights and remedies
with respect to the Pledged Collateral set forth in the Indenture.
SECTION 9. Expenses. Pledgor will upon demand pay to Trustee the amount
of any and all reasonable expenses, including, without limitation, the
reasonable fees, expenses and disbursements of its counsel, of any business
broker or other selling agent and of any other experts and agents retained by
Trustee, that Trustee may incur in connection with (i) the administration of
this Pledge Agreement, (ii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Pledged Collateral, (iii)
the exercise or enforcement of any of the rights of Trustee hereunder, or (iv)
the failure by Pledgor to perform or observe any of the provisions hereof.
SECTION 10. Interest Absolute. All rights of Trustee and security
interests hereunder, and all obligations of Pledgor hereunder, shall be absolute
and unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture, or any
other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of Pledgor's obligations pursuant to the Indenture, or
any other amendment or waiver of or any consent to any departure from the
Indenture;
4
5
(c) any exchange, surrender, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to departure
from any guarantee, for all or any of Pledgor's obligations pursuant to the
Indenture; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Pledgor in respect of the Indenture obligations
or of this Pledge Agreement.
SECTION 11. Miscellaneous Provisions.
SECTION 11.1 Notices. All notices, requests and demands to or
upon a party hereto, to be effective, shall be in writing and shall be sent by
certified or registered mail, return receipt requested, by personal delivery
against receipt, by overnight courier or by facsimile and, unless otherwise
expressly provided herein, shall be deemed to have been validly served, given or
delivered immediately when delivered against receipt, two (2) business days
after deposit in the mail, postage prepaid, one (1) business day after deposit
with an overnight courier or, in the case of facsimile notice, when sent,
addressed as follows:
If to Trustee: Norwest Bank Texas, N.A.
-------------------------------------
-------------------------------------
Attention:
---------------------------
Facsimile No.:
-----------------------
If to Pledgor: Austin Xxxxxxx.xxx Corporation
000 Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. XxXxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxx
Xxxxxx & Xxxxxx, P.C.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
or to such other address as each party may designate for itself by notice given
in accordance with this Section 11.1.
SECTION 11.2 No Adverse Interpretation of Other Agreements. This Pledge
Agreement may not be used to interpret another pledge, security or debt
agreement of Pledgor, Pledgor or any subsidiary thereof. No such pledge,
security or debt agreement may be used to interpret this Pledge Agreement.
5
6
SECTION 11.3 Severability. The provisions of this Pledge Agreement are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Pledge Agreement in any jurisdiction.
SECTION 11.4 Headings. The headings of the Articles and Sections of
this Pledge Agreement have been inserted for convenience of reference only, are
not to be considered a part hereof and shall in no way modify or restrict any of
the terms or provisions hereof.
SECTION 11.5 Amendments Waivers and Consents. Any amendment or waiver
of any provision of this Pledge Agreement and any consent to any departure by
Pledgor from any provision of this Pledge Agreement shall be effective only if
made or given in compliance with all of the terms and provisions of the
Indenture necessary for amendments or waivers of, or consents to, any departure
by Pledgor from any provision of the Indenture, and Trustee not shall be deemed,
by any act, delay, indulgence, omission or otherwise, to have waived any right
or remedy hereunder or to have acquiesced in any default or event of default or
in any breach of any of the terms and conditions hereof. Failure of Trustee to
exercise, or delay in exercising, any right, power or privilege hereunder shall
not operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by
Trustee of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy that Trustee would otherwise have on
any future occasion. The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any rights or
remedies provided by law.
SECTION 11.6 Interpretation of Pledge Agreement. Time is of the essence
in each provision of this Pledge Agreement of which time is an element. All
terms not defined herein or in the Indenture shall have the meaning set forth in
the applicable UCC, except where the context otherwise requires. To the extent a
term or provision of this Pledge Agreement conflicts with the Indenture and is
not dealt with herein with more specificity, the Indenture shall control with
respect to the subject matter of such term or provision. Acceptance of or
acquiescence in a course of performance rendered under this Pledge Agreement
shall not be relevant to determine the meaning of this Pledge Agreement even
though the accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
SECTION 11.7 Continuing Security Interest; Transfer of Debentures. This
Pledge Agreement shall create a continuing security interest in the Pledged
Collateral and shall (i) remain in full-force and effect until the payment in
full of all of the Debentures, (ii) be binding upon Pledgor, its successors and
assigns, and (iii) inure, together with the rights and remedies of Trustee
hereunder, to the benefit of the Trustee and the Holders, and their respective
heirs, successors, transferees and assigns.
6
7
SECTION 11.8 Reinstatement. This Pledge Agreement shall continue to be
effective or be reinstated if at any time any amount received by Trustee in
respect of the Indenture obligations is rescinded or must otherwise be restored
or returned by Trustee upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of Pledgor or upon the appointment of any receiver,
intervenor, conservator, trustee or similar official for Pledgor or any
substantial part of its assets, or otherwise, all as though such payments had
not been made.
SECTION 11.9 Survival of Provisions. All representations, warranties
and covenants of Pledgor contained herein shall survive the execution and
delivery of this Pledge Agreement, and shall terminate only upon the full and
final payment and performance of Pledgor's obligations pursuant to the
Indenture.
SECTION 11.10 Waivers. Pledgor waives presentment and demand for
payment of any of its obligations pursuant to the Debenture, protest and notice
of dishonor or default with respect to any of such obligations, notice of
intention to accelerate, notice of acceleration and all other notices to which
Pledgor might otherwise be entitled, except as otherwise expressly provided
herein or in the Indenture.
SECTION 11.11 Authority of Trustee.
(a) Trustee shall have and be entitled to exercise all powers hereunder
that are specifically granted to Trustee by the terms hereof, together with such
powers as are reasonably incident there to. Trustee may perform any of its
duties hereunder or in connection with the Pledged Collateral by or through
agents or employees and shall be entitled to retain counsel and to act in
reliance upon the advice of counsel concerning all such matters. Neither
Trustee, nor any director, officer, employee, attorney or agent of Trustee,
shall be liable to Pledgor for any action taken or omitted to be taken by it or
them hereunder, except for its or their own gross negligence or willful
misconduct, nor shall Trustee be responsible for the validity, effectiveness or
sufficiency hereof or of any document or security furnished pursuant hereto.
Trustee and its directors, officers, employees, attorneys and agents shall be
entitled to rely on any communication, instrument or document believed by it or
them to be genuine and correct and to have been signed or sent by the proper
person or persons. Pledgor agrees to indemnify and hold harmless Trustee and any
other person or entity from and against any and all costs, expenses (including
reasonable fees, expenses and disbursements of attorneys and paralegals
(including, the allocated costs of inside counsel), claims and liabilities
incurred by Trustee or such person or entity hereunder, unless such claim or
liability shall be due to willful misconduct or gross negligence on the part of
Trustee or such person or entity.
SECTION 11.12 Release; Termination of Pledge Agreement.
(a) Subject to the provisions of Section 11.8 hereof, this Pledge
Agreement shall terminate upon full and final payment and performance of
Pledgor's obligations pursuant to the Indenture and payment in full of all fees
and expenses owing by Pledgor and Pledgor to
7
8
Trustee. At such time, Trustee shall, at the request of Pledgor, reassign and
redeliver to Pledgor all of the Pledged Collateral hereunder that has not been
sold, disposed of, retained or applied by Trustee in accordance with the terms
hereof. Such reassignment and redelivery shall be without warranty by or
recourse to Trustee, except as to the absence of any prior assignments by
Trustee of its interest in the Pledged Collateral, and shall be at the expense
of Pledgor.
(b) Pledgor agrees that it will not sell or dispose of, or grant any
option or warrant with respect to, any of the Pledged Collateral.
SECTION 11.13 Final Expression. This Pledge Agreement, together with
any other agreement executed in connection herewith, is intended by the parties
as a final expression of this Pledge Agreement and is intended as a complete and
exclusive statement of the terms and conditions thereof.
SECTION 11.14 Pledgor Remains Liable. Anything herein to the contrary
notwithstanding, (a) Pledgor shall remain liable under any contracts and
agreements included in the Pledged Collateral, to the extent set forth therein,
to perform all of its duties and obligations thereunder to the same extent as if
this Pledge Agreement had not been executed, (b) the exercise by Trustee of any
of the rights hereunder shall not release Pledgor from any of its duties or
obligations under the contracts and agreements included in the Pledged
Collateral, and (c) Trustee shall not have any obligation or liability under any
contracts and agreements included in the Pledged Collateral by reason of this
Pledge Agreement, nor, except as provided in the Indenture, shall Trustee be
obligated to perform any of the obligations or duties of Pledgor thereunder or
to take any action to collect or enforce any claim for payment assigned
hereunder.
SECTION 11.15 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL; WAIVER OF DAMAGES.
(i) THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED
UNDER THE LAWS OF THE STATE OF TEXAS, AND ANY DISPUTE ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE
PLEDGOR AND TRUSTEE IN CONNECTION WITH THIS PLEDGE AGREEMENT AND WHETHER ARISING
IN CONTRACT TORT EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE
INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS) AND DECISIONS OF
THE STATE OF TEXAS; PROVIDED, IF EXPRESSLY REQUIRED TO BE THAT OF THE STATE IN
WHICH THE ISSUER IS LOCATED, THE LAW APPLICABLE TO PERFECTION OF TRUSTEE'S
SECURITY INTEREST IN THE PLEDGED COLLATERAL SHALL BE THAT OF THE STATE IN WHICH
THE ISSUER IS LOCATED.
8
9
(ii) EXCEPT AS PROVIDED IN THE NEXT PARAGRAPH, PLEDGOR AND
TRUSTEE AGREE THAT ALL DISPUTES BETWEEN OR AMONG THEM ARISING OUT OF CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH THIS PLEDGE AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT
EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR FEDERAL COURTS LOCATED
IN XXXXXX, XXXXXX COUNTY, TEXAS, BUT PLEDGOR AND TRUSTEE ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
XXXXXX, XXXXXX COUNTY, TEXAS. PLEDGOR WAIVES IN ALL DISPUTES ANY OBJECTION THAT
IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS.
(iii) PLEDGOR AGREES THAT TRUSTEE SHALL, IN ITS OWN NAME, HAVE
THE RIGHT TO THE EXTENT PERMITTED BY APPLICABLE LAW TO PROCEED AGAINST THE
PLEDGED COLLATERAL IN A COURT IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH
TO ENABLE TRUSTEE TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER AGAINST SUCH PROPERTY ENTERED IN FAVOR OF TRUSTEE. PLEDGOR AGREES
THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT
BY TRUSTEE TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF TRUSTEE WITH RESPECT TO SUCH PROPERTY. PLEDGOR WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH TRUSTEE HAS
COMMENCED A PROCEEDING DESCRIBED IN THIS PARAGRAPH, INCLUDING, WITHOUT
LIMITATION, ANY OBLIGATION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS.
(iv) PLEDGOR AND TRUSTEE EACH WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS PLEDGE AGREEMENT.
INSTEAD, ANY DISPUTES RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL
WITHOUT A JURY. PLEDGOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO PLEDGOR AT
ITS ADDRESS SET FORTH IN THE INDENTURE, SUCH SERVICE TO BECOME EFFECTIVE FIVE
(5) BUSINESS DAYS AFTER SUCH MAILING.
9
10
(v) PLEDGOR AGREES THAT TRUSTEE SHALL NOT HAVE ANY LIABILITY TO
PLEDGOR, WHETHER SOUNDING IN TORT CONTRACT OR OTHERWISE, FOR LOSSES SUFFERED BY
PLEDGOR IN CONNECTION WITH, ARISING OUT OF OR IN ANY WAY RELATED TO, THE
TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS PLEDGE
AGREEMENT OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH,
UNLESS IT IS DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS
BINDING ON TRUSTEE CONSTITUTING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
SECTION 11.16 Acknowledgments. Pledgor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Pledge Agreement;
(b) Trustee has no fiduciary relationship to Pledgor, and the
relationship between Trustee on the one hand, and Pledgor, on the other hand, is
solely as described in the Indenture; and
(c) no joint venture exists between Pledgor and Trustee.
SECTION 11.17 Counterparts. This Pledge Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts taken together shall constitute but
one and the same instrument.
IN WITNESS WHEREOF, Pledgor and Trustee has caused this Pledge
Agreement to be duly executed and delivered as of the date first above written.
PLEDGOR:
AUSTIN XXXXXXX.XXX CORPORATION,
a Nevada corporation
By:
------------------------------------
Xxxxx X. XxXxxxxx, President
10
11
TRUSTEE:
Norwest Bank Texas, N.A.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
11
12
EXHIBIT "A"
Evidence of Bond Issuance
(to be attached)
12
