Exhibit 4
PLEDGE AND SECURITY AGREEMENT
(BANK AS LENDER/PARTNERSHIP PLEDGOR)
This Pledge and Security Agreement (this "Agreement") is made as of the 5th
day of February, 1997, by and among Xxxxxx, Xxxxxxx Strategic Partners Fund,
L.P., a Delaware limited partnership, as pledgor ("Pledgor"), Wilmington Trust
Company, a Delaware banking corporation, as lender ("Secured Party"), and
Wilmington Trust Company, a Delaware banking corporation, as financial
intermediary ("Financial Intermediary").
WITNESSETH:
WHEREAS, Pledgor has executed and delivered to Secured Party its Promissory
Note and Loan Agreement in the principal amount of $8,000,000 (the "Note") to
evidence a loan in the form of a revolving line of credit (the "Loan") made to
Pledgor by Secured Party; and
WHEREAS, Pledgor maintains a Pledged Account (as hereinafter defined) with
Financial Intermediary that contains Securities (as hereinafter defined), which
Account and Securities Pledgor desires to pledge to Secured Party and in which
Pledgor desires to grant to Secured Party a first priority perfected security
interest to secure Pledgor's obligations in connection with the Loan; and
WHEREAS, to induce Secured Party to make the Loan, Pledgor has agreed to
execute and deliver to Secured Party this Agreement.
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, Pledgor, Secured Party and
Financial Intermediary hereby agree as follows:
SECTION 1. PLEDGE OF SECURITY. To secure the payment and performance of the
Obligations (as defined in Section 2 hereof), Pledgor hereby pledges, grants and
assigns to Secured Party a lien in and first priority perfected security
interest against all of Pledgor's right, title and interest in and to (i) a
custody/investment agency account in the name of Pledgor with Financial
Intermediary and further identified by Financial Intermediary as Account Number
36054-1 (the "Pledged Account"), (ii) any and all now owned or hereafter
acquired cash, securities, instruments or other property of any kind whatsoever
which are included now or at any time hereafter in the Pledged Account (jointly
and severally, the "Securities") including, without limitation, the Securities
now held in the Pledged Account and listed on Exhibit A attached hereto and
incorporated herein, (iii) all interest, dividends and income of any kind now or
hereafter derived from any property in the Pledged Account, and (iv) any and all
proceeds (as defined in Section 9-306 of the Uniform Commercial Code as in
effect in the State of Delaware (the "UCC")) of all the foregoing (items
(i)-(iv) being hereinafter referred to as the "Collateral").
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement is made for the benefit
of Secured Party to secure (i) the payment of the principal of and interest on
the Note from time to time (including, without limitation, interest accruing
after the date of any filing by Pledgor of any petition in bankruptcy or the
commencement of any bankruptcy, insolvency or similar proceeding with respect to
Pledgor), (ii) the payment of any indebtedness or obligations of Pledgor
relating to any guaranty in connection with the Loan or this Agreement, (iii)
the payment of all other indebtedness and obligations relating to the Loan
(including, without limitation, the payment of any taxes, assessments or fees
referred to in the Note, this Agreement or any other documents relating to the
Loan), including any extensions, replacements, modifications, substitutions,
amendments and renewals thereof made in accordance with the terms thereof (the
obligations referred to in clauses (i), (ii) and (iii) hereof being referred to
jointly and severally herein as the "Obligations").
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. Pledgor
hereby represents, warrants and covenants as follows:
(a) Pledgor is organized under the laws of the State of Delaware;
Pledgor has all requisite power and authority to execute, deliver and perform
its obligations under this Agreement; the general partner of Pledgor is Xxxxxx,
Xxxxxxx Strategic Partners, L.P., a Delaware limited partnership, the general
partners of which are Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx; and Pledgor shall
not change the General Partner of Pledgor without prior written notice to
Secured Party.
(b) Pledgor is the sole legal and beneficial owner of the Collateral,
including, without limitation, the Securities.
(c) Pledgor has not sold, assigned, pledged, created a lien or security
interest in, or otherwise transferred any interest in, the Collateral to any
other person or entity, and without Secured Party's prior written consent,
Pledgor will not sell, assign, transfer, convey xxxxx x xxxx or security
interest in or otherwise dispose of all, or any portion of, the Collateral,
including, without limitation, the Securities, except in accordance with the
provisions of Section 4 hereof.
(d) Unless otherwise agreed to in writing by Secured Party, the
Securities shall comply with the criteria specified in Exhibit A at all times
that any amounts are due and unpaid to Secured Party under the Note. In
addition, Pledgor shall direct all limited partners of Pledgor to deliver
capital contributions to the Pledged Account. Pursuant to Pledgor's Limited
Partnership Agreement, capital contributions are expected to be funded in cash
within 30 days of each capital call. No Collateral (including, without
limitation, cash) will be removed from the Pledged Account until any then
outstanding principal balance and any accrued and unpaid interest on the Note is
paid in full.
(e) Pledgor shall furnish or cause to be furnished to Secured Party,
from time to time, such additional information and copies of such documents
relating to this Agreement, the Collateral, and Pledgor's financial condition as
Secured Party may reasonably request.
(f) Pledgor shall, upon the request of Secured Party or Financial
Intermediary, furnish to Secured Party or Financial Intermediary, such further
information, execute and deliver to Secured Party or Financial Intermediary such
other documents evidencing that all right, title and interest of Pledgor in the
Collateral have been pledged and assigned to Secured Party, and do such other
acts and things, all as Secured Party or Financial Intermediary may at any time
reasonably request relating to the perfection or protection of Secured Party's
interests created by this Agreement or for the purpose of carrying out the
intent of this Agreement.
(g) All compensation, charges, fees, taxes, costs, and expenses
relating to the Pledged Account, Collateral or this Agreement shall be paid by
Pledgor, and Secured Party shall have no responsibility for such amounts nor
shall any such amounts be deductible from the Collateral, except as otherwise
provided or permitted in Section 6(m) hereof.
(h) Pledgor agrees to pay promptly when due all taxes, assessments or
governmental charges with respect to the Collateral.
(i) Pledgor shall cause, as a precautionary measure, a financing
statement to be duly filed with the office of the Secretary of State of the
State of Delaware (Uniform Commercial Code Division) and such other filing
offices as reasonably requested by Secured Party with respect to the Collateral,
and shall provide satisfactory evidence of such filing(s) to Secured Party. The
financing statement shall cover all of Pledgor's interest in the Collateral.
(j) Financial Intermediary and Secured Party shall have no liability to
Pledgor for, and Pledgor hereby absolutely, unconditionally and irrevocably
waive any and all charges, damages, taxes or claims of any kind or nature
whatsoever with respect to the selection of Collateral for liquidation or the
order of liquidation of the Collateral.
SECTION 4. INSTRUCTIONS TO FINANCIAL INTERMEDIARY.
(a) Pledgor hereby authorizes and instructs Financial Intermediary from
the date of this Agreement not to permit Pledgor or any other party to receive
any payments, proceeds or other distributions (whether of money or property)
from the Collateral without the express written permission of Secured Party;
provided, however, that such permission shall not be required so long as no
amounts are then due and unpaid to Secured Party under the Note. Notwithstanding
the foregoing, prior to the written notice to Financial Intermediary from
Secured Party of an Event of Default (as hereinafter defined), except as
provided herein, Pledgor may retain all rights and privileges of ownership of
the Securities (i.e., voting) and Secured Party authorizes Financial
Intermediary to distribute the interest and dividends earned on the Securities
to Pledgor, provided that upon notification from Secured Party to Financial
Intermediary that an Event of Default has occurred, Financial Intermediary shall
cease distributing interest or dividends earned on the Securities to Pledgor
and, if instructed by Secured Party, Financial Intermediary shall distribute
such interest and dividends to Secured Party.
(b) Secured Party hereby authorizes Financial Intermediary to follow
instructions provided by or on behalf of Pledgor with respect to the
reinvestment, sale or other disposition of the Collateral; provided that Pledgor
hereby agrees that all Collateral in the Pledged Account, including, without
limitation, all proceeds of any sale or disposition thereof in the Pledged
Account, shall be invested in securities satisfying the criteria identified on
Exhibit A attached hereto and made part hereof (as modified from time to time
with the written agreement of the Secured Party) at all times that any amounts
are due and unpaid to Secured Party under the Note. Pledgor agrees to notify any
investment manager of the investment restrictions for the Pledged Account and
Collateral, and Pledgor agrees to remain liable for the failure of any
investment manager to comply with the investment guidelines.
(c) Pledgor instructs Financial Intermediary to provide written
confirmation on the date hereof that all of Pledgor's right, title and interest
in the Collateral, including the Pledged Account and the Securities, have been
pledged and assigned to Secured Party.
(d) Pledgor agrees that, if an Event of Default occurs, Secured Party
is authorized and empowered to direct Financial Intermediary to liquidate the
Collateral then held in the Pledged Account and remit the proceeds to Secured
Party to be applied in the priority set forth in Section 9 below. Pledgor agrees
that Financial Intermediary shall have no duty to make any inquiry upon being
notified in writing by Secured Party that an Event of Default has occurred and
Financial Intermediary shall have no liability for thereafter acting upon
Secured Party's instructions. Neither Financial Intermediary nor Secured Party
shall have any liability to Pledgor for, and Pledgor hereby absolutely,
unconditionally and irrevocably waives, any and all charges, damages, taxes or
claims of any kind or nature whatsoever with respect the selection of Securities
for liquidation or the order of liquidation of Securities constituting the
Collateral.
SECTION 5. DELIVERY OF COLLATERAL TO FINANCIAL INTERMEDIARY. The
Collateral shall be held in the possession of Financial Intermediary on behalf
of, and as agent and bailee for, Secured Party in the Pledged Account. Financial
Intermediary hereby agrees and certifies that all of the Collateral is, by book
entry or otherwise, identified by Financial Intermediary as belonging to (i.e.,
subject to a security interest in favor of) Secured Party. In furtherance of the
foregoing, Financial Intermediary, by its execution and delivery of this
Agreement, shall be deemed to have confirmed and to have sent confirmation to
Secured Party of the transfer of the security interest in the Collateral to
Secured Party and by book entry or otherwise identified all such Collateral as
belonging to Secured Party.
SECTION 6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF FINANCIAL
INTERMEDIARY. Financial Intermediary represents, warrants and covenants to and
with Pledgor and Secured Party that:
(a) It is a "Financial Intermediary" within the meaning of 6 Del. C.,
Section 8-313.
(b) It has notification of Secured Party's security interest in the
Collateral, but no notice or knowledge of any adverse claim or liens against any
of the Collateral (including, without limitation, purchase money liens, federal
tax liens or liens arising under the Employee Retirement Income Security Act of
1974, as amended).
(c) It has full power and authority to execute, deliver and perform its
obligations under this Agreement.
(d) This Agreement has been duly authorized, executed and delivered by
it, and is enforceable against it.
(e) It shall send copies of all correspondence, statements and
information relating to the Collateral, including the Pledged Account, to
Secured Party at the same time it sends any such correspondence, statements and
information to Pledgor.
(f) Except as otherwise provided in Section 4 hereof, it shall not
purchase, sell or otherwise dispose of any of the Collateral, without the prior
written consent of Secured Party.
(g) Except as otherwise provided in Section 4 hereof, it shall not make
any distribution or payment of any kind arising out of the Pledged Account to
Pledgor or any other person or entity, without the prior written consent of
Secured Party. Financial Intermediary agrees that, upon receipt of written
notice by Secured Party that an Event of Default has occurred, Financial
Intermediary shall at the direction of Secured Party proceed to sell or
otherwise liquidate the Collateral and remit the proceeds to Secured Party and
send all distributions of interest and dividend income earned on the Collateral
to Secured Party.
(h) Its books and records shall reflect that Pledgor has transferred
its interest in the Collateral to Secured Party.
(i) It shall make appropriate entries on its books and records to
evidence, and hereby acknowledges, that all Collateral being held by Financial
Intermediary is being held as agent of and bailee for the benefit of Secured
Party.
(j) That all Collateral in the Pledged Account, will be held (i) by
Financial Intermediary in a Financial Intermediary designated account, or (ii)
by Financial Intermediary with The Depository Trust Company ("DTC") in New York,
New York, the Federal Reserve Bank of Philadelphia, in another registered
clearing corporation, or (iii) in an account in the name of Financial
Intermediary maintained with an agent bank in New York (collectively or
individually, a "Clearing Corporation").
(k) With respect to all Securities carried in the account of Financial
Intermediary with a Clearing Corporation, Financial Intermediary has received
from such Clearing Corporation confirmation of such Clearing Corporation holding
all such Securities for the account of Financial Intermediary.
(l) The certifications as set forth above are based on the current
operating procedures of Financial Intermediary in accordance with the laws and
regulations currently in effect.
(m) It hereby absolutely, unconditionally, and irrevocably subordinates
any and all claims, liens, pledges, security interests, encumbrances, demands,
set-offs or charges of any kind or nature whatsoever with respect to the
Collateral to the interest of Secured Party.
SECTION 7. EVENTS OF DEFAULT. Notwithstanding anything contained in
this Agreement to the contrary, an event of default shall occur under this
Agreement (an "Event of Default") upon the occurrence of a default, after the
expiration of any applicable grace period, under the Note, or the breach by
Pledgor of any representation, warranty or covenant contained in this Agreement
as determined by Secured Party, or the failure by Pledgor to perform any
obligation under this Agreement as determined by Secured Party, and such breach
or failure continues for fifteen (15) business days after written notice to
Pledgor that Secured Party considers such breach or failure to be a default.
SECTION 8. REMEDIES ON DEFAULT. Upon the occurrence of any Event of
Default, Secured Party shall have all of the rights and remedies under this
Agreement, including the remedy set forth in Section 4 hereof to liquidate the
Collateral held in the Pledged Account and cause Financial Intermediary to remit
the proceeds so generated to Secured Party and, to the extent that such proceeds
remitted to Secured Party do not equal the Obligations, Pledgor hereby waives
and relinquishes, to the maximum extent permitted by law, any and all rights to
claim that Secured Party may not proceed against them for any deficiency. Upon
the occurrence of any Event of Default, in addition to all rights of Secured
Party under this Agreement, Secured Party shall have all rights and remedies of
a secured party under the UCC and under any applicable law, as the same may from
time to time be in effect. Among other things, Secured Party may sell the
Collateral under any applicable Uniform Commercial Code and apply the proceeds
in the manner set forth in Section 9.
SECTION 9. APPLICATION OF PROCEEDS OF SALE OF COLLATERAL. The proceeds
of any disposition of all, or any part of, the Collateral shall be applied by
Secured Party as follows:
FIRST: To the payment of all costs and expenses incurred by Secured
Party in order to obtain such proceeds or monies, including but not limited to
all court costs and the reasonable fees and disbursements of counsel for Secured
Party, and to the repayment of all advances made by Secured Party hereunder for
the account of Pledgor;
SECOND: To the payment in full or reduction of interest that is due
Secured Party in connection with the Obligations;
THIRD: To the payment in full or reduction of any remaining
undischarged principal obligations due Secured Party in connection with the
Obligations;
FOURTH: To the payment in full or reduction of any remaining
undischarged obligations due Secured Party in connection with the Obligations;
and
FIFTH: Any excess of such proceeds not needed to pay Secured Party the
amounts described in paragraphs First, Second, Third and Fourth above shall be
paid over to Pledgor or as any court of competent jurisdiction shall order.
SECTION 10. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Pledgor hereby
constitutes and appoints Secured Party the Attorney-in-Fact of Pledgor for the
purpose of carrying out the provisions of this Agreement and to take any action
and executing any instrument which Secured Party may deem necessary or advisable
to accomplish the purposes hereof, which appointment is irrevocable and coupled
with an interest. Without limiting the generality of the foregoing, Secured
Party shall have the right, after the occurrence and during the continuance of
an Event of Default, with full power of substitution either in the Secured
Party's name or in the name of Pledgor, to settle, compromise, prosecute or
defend any action, claim or proceeding with respect to the
Collateral and to sell, assign, endorse, pledge, transfer and make any agreement
respecting, or otherwise deal with, the same; provided, however, that nothing
herein contained shall be construed as requiring or obligating Secured Party to
make any inquiry as to the nature of sufficiency of any payment received by it,
to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof of the monies due or to become due in respect
thereof or any property covered thereby, and no action taken or omitted to be
taken by Secured Party with respect to the Collateral or any part thereof shall
give rise to any defense, counterclaim or offset in favor of Pledgor or to any
claim or action against Secured Party.
SECTION 11. TERMINATION. This Agreement and the liens and security
interest created hereunder shall terminate when Secured Party gives Pledgor and
Financial Intermediary written notice that all of the Obligations relating to
the Loan have been indefeasibly paid in full and when Secured Party has no
further obligation to extend credit under the Note, at which time Secured Party
shall execute and deliver to Pledgor all documents which Pledgor shall
reasonably request to evidence termination of such security interest provided,
however, that all indemnities of Pledgor contained in this Agreement shall
survive termination of this Agreement.
SECTION 12. INDEMNITY AND EXPENSES. Pledgor agrees to indemnify Secured
Party and Financial Intermediary from and against any and all claims, losses and
liabilities growing out of or resulting from the failure of Pledgor to comply
with the terms and conditions of this Agreement (including, without limitation,
enforcement of, this Agreement, the Note and any other documents relating to the
Loan and all claims and demands of all persons at any time claiming the
Collateral or any interest therein), except claims, losses or liabilities
resulting from Secured Party's or Financial Intermediary's gross negligence or
willful misconduct. Pledgor agrees to pay on demand all out-of-pocket expenses
(including the reasonable fees and expenses of Secured Party's and Financial
Intermediary's counsel, experts and agents) in any way relating to the
enforcement or protection of the rights of Secured Party or Financial
Intermediary hereunder.
SECTION 13. MISCELLANEOUS PROVISIONS.
(a) Notices. All notices given pursuant to any provision of this
Agreement shall be in writing and hand delivered, with a receipt being obtained
therefor, or sent by United States registered or certified mail, return receipt
requested, postage prepaid, or by Federal Express or other overnight courier
service, or via telecopier, at the following addresses or such other addresses
as to which the parties hereto may be notified in writing from time to time:
Pledgor:
Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P.
Attention: Xxxxx X. Xxxxxxx
0 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Secured Party:
Wilmington Trust Company
Attention: Xxxxxx Xxxxxxx, Commercial Loan
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Financial Intermediary:
Wilmington Trust Company
Attention: Corporate Custody
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
All such notices shall be deemed to have been given when received (if hand
delivered or telecopied) or two (2) days after deposit in the mails (if mailed)
or the next business day (if sent by Federal Express or other overnight courier
service); provided that any notice to Financial Intermediary shall be effective
only upon receipt.
(b) AMENDMENTS. All amendments and modifications of this Agreement must
be in writing and signed by the party against whom the same is sought to be
enforced.
(c) SEVERABILITY. If any term or provision of this Agreement or the
application thereof shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision, shall
be valid and may be enforced to the fullest extent permitted by law.
(d) NO DUTY TO PRESERVE COLLATERAL. Except as required by applicable
law, Secured Party shall not be obligated to take any steps necessary to
preserve any rights in the Collateral or in any security therefore against any
other party, which obligation Pledgor hereby assumes.
(e) ASSIGNMENT. This Agreement, including the covenants and agreements
contained herein, shall be binding upon and shall inure to the benefit of the
successors and assigns of the parties hereto.
(f) NO WAIVER; CUMULATIVE RIGHTS. To the extent permitted by applicable
law, no failure on the part of Secured Party to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Secured Party of any right,
remedy or power hereunder preclude any other or future exercise of any other
right, remedy or power. Each and every right, remedy and power hereby granted to
Secured Party or allowed it by law or other agreement shall be cumulative and
not exclusive, and may be exercised by Secured Party from time to time.
(g) EXECUTION AND COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but such counterpart
shall together constitute but one and the same instrument.
(h) CONFLICTS OF INTEREST ACKNOWLEDGMENT. Pledgor acknowledges that
Secured Party and Financial Intermediary are the same corporate entity and
waives any conflict of interest which may exist as a result. Pledgor agrees that
Wilmington Trust Company, in its capacity as Financial Intermediary, is not
charged with any special knowledge arising from its role as Secured Party nor is
Wilmington Trust Company, in either capacity, under a duty to inquire of, or
inform, its various departments and divisions supporting its various roles in
this transaction regarding any aspect of the transaction set forth in this
Agreement. In addition, Pledgor acknowledges that Wilmington Trust Company may
be designated from time to time by Pledgor to act as investment manager on
behalf of Pledgor, and if so designated, Pledgor hereby waives any and all
claims of conflict of interest for Wilmington Trust Company to serve in such
capacity.
SECTION 14. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware; provided, however, that with respect to Collateral, if
any, located in the State of New York, the laws of the State of New York shall
govern the perfection and priority of security interests in such Collateral. To
induce Secured Party to enter into this Agreement and to induce Secured Party to
make the Loan, Pledgor hereby irrevocably agrees that, to the extent permitted
by applicable law, subject to Secured Party's sole and absolute election, all
actions or proceedings that arise out of or in connection with this Agreement
shall be litigated in courts within the State of Delaware. Pledgor hereby
consents to personal jurisdiction in any state or federal court located within
the State of Delaware. To the extent permitted
under applicable law, Pledgor hereby waives any right it may have to transfer or
change the venue of any litigation between Pledgor and Secured Party in
accordance with this paragraph.
EACH OF PLEDGOR AND SECURED PARTY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING WHICH
IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH OR IS IN ANY WAY RELATED TO
THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN.
The provisions of this Section 14 are a material inducement for Secured
Party's entering into the Loan and the transactions contemplated herein. Pledgor
hereby acknowledges that it has reviewed the provisions of this Section 14 with
its independent counsel.
IN WITNESS WHEREOF, Pledgor, Secured Party and Financial Intermediary
intending to be legally bound hereby, have duly executed this Agreement under
seal and caused it to be dated the day and year first above written.
[Seal] XXXXXX, XXXXXXX STRATEGIC
PARTNERS FUND, L.P., as Pledgor,
by its sole General Partner,
Xxxxxx, Xxxxxxx Strategic Partners, L.P.,
by its General Partners
Witness: /s/ Xxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxx
------------------ ---------------------------------
Xxxxxx X. Xxxxxx, General Partner
Witness: /s/ Xxxx Xxxxxxx /s/ Xxxxx X. Xxxxxxx
------------------ ---------------------------------
Xxxxx X. Xxxxxxx, General Partner
[SEAL] WILMINGTON TRUST COMPANY,
as Secured Party
Attest: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------- --------------------------
Title: Senior Banking Officer Title: Vice President
[SEAL] WILMINGTON TRUST COMPANY,
as Financial Intermediary
Attest: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
--------------------- --------------------------
Title: Senior Banking Officer Title: Senior Financial Services Officer
EXHIBIT A TO PLEDGE AND SECURITY AGREEMENT AMONG
XXXXXX, XXXXXXX STRATEGIC PARTNERS FUND, L.P., AS PLEDGOR,
WILMINGTON TRUST COMPANY, AS SECURED PARTY,
AND WILMINGTON TRUST COMPANY, AS FINANCIAL INTERMEDIARY
LIST OF INITIAL SECURITIES
Initially, no assets will be held in the Pledged Account.
CRITERIA FOR SECURITIES
(TYPE, RATING, ETC.)
The Pledged Account (account number 36054--1) will be the repository for the
limited partners' cash contributions from the date of receipt, which is expected
to be no more than 30 days after the capital call is made, until these funds are
used to purchase securities for the Fund or to pay expenses. Cash in the Pledged
Account may be invested in U.S. Treasury Bills, U.S. Treasury Notes and/or U.S.
Treasury Bonds or shares of money market mutual funds invested primarily in U.S.
Treasury securities, including any such mutual fund managed by Financial
Intermediary or any affiliate thereof.
EXHIBIT "A" TO FINANCING STATEMENT NAMING
XXXXXX, XXXXXXX STRATEGIC PARTNERS FUND, L.P., AS DEBTOR,
AND WILMINGTON TRUST COMPANY, AS SECURED PARTY
All of Debtor's right, title and interest in and against an agency/custody
account in the name of Debtor with Wilmington Trust Company, as bailee and
financial intermediary ("WTC"), and further identified by WTC as WTC Account
Number 36054-1 (the "Pledged Account"); any and all now owned or hereafter
acquired securities which are included now or at any time hereafter in the
Pledged Account, as defined in the Pledge and Security Agreement dated as of
February 5, 1997 (the "Pledge and Security Agreement"), by and among the Debtor,
Wilmington Trust Company, as Secured Party, and WTC; any and all instruments,
cash, general intangibles or other property of any kind whatsoever now or
hereafter held in the Pledged Account, including, without limitation, all
interest, dividends and income of any kind now or hereafter derived from any
property in the Pledged Account; and any and all proceeds (as defined in Section
9-306 of the Uniform Commercial Code as in effect in the State of Delaware) of
all the foregoing (all of the foregoing being hereinafter referred to as the
"Collateral"). Interested parties may contact Wilmington Trust Company during
normal business hours to view specific records describing the Collateral,
including a copy of the Pledge and Security Agreement.
