PLEDGE AGREEMENT
THIS BORROWER PLEDGE AGREEMENT (this "Agreement") is entered into as of
September 5, 2001 by and among The Right Start, Inc., a California corporation
(the "Pledgor"), ZB Company, Inc., a Delaware corporation (the "Pledged Stock
Issuer"), and Xxxxx Fargo Retail Finance LLC, in its capacity as agent (the
"Agent"), on its own behalf and on behalf of the other Secured Parties (defined
below).
WITNESSETH
WHEREAS, the Pledged Stock Issuer is simultaneously entering into a Loan
and Security Agreement (as amended, supplemented or otherwise modified from time
to time, the "Loan Agreement") with the Agent and the other Lenders from time to
time party thereto (the "Lenders"), pursuant to which the Lenders, subject to
the terms and conditions contained therein, have agreed to make certain
advances, cause the issuance of letters of credit and provide other financial
accommodations to the Pledged Stock Issuer (collectively, the "Loans");
WHEREAS, the Pledgor owns all of the outstanding capital stock of
Pledged Stock Issuer and believes that the effectiveness of the Loan Agreement
will be beneficial to it; and
WHEREAS, it is a condition precedent to the effectiveness of the Loan
Agreement that the Pledgor execute and deliver this Borrower Pledge Agreement to
the Agent, for its own benefit and the benefit of each of the Secured Parties;
NOW, THEREFORE, in consideration of the willingness of the Agent and the
Lenders to enter into the Loan Agreement and to agree, subject to the terms and
conditions set forth therein, to make the Loans to the Pledged Stock Issuer
pursuant thereto, and for other good and valuable consideration, receipt of
which is hereby acknowledged, it is hereby agreed as follows:
1. Certain Definitions.
(a) As used in this Agreement the following terms shall have the following
definitions:
(i) "Pledged Collateral" shall mean the Pledged Notes and the Pledged
Stock and any collateral now or hereafter pledged hereunder.
(ii) "Pledged Notes" shall mean the promissory notes or other
instruments, if any, payable to the Pledgor listed on Schedule I
hereto and any other instruments or other instruments now or
hereafter pledged hereunder.
(iii)"Pledged Stock" shall mean the shares of capital stock of each
Pledged Stock Issuer listed on Schedule I hereto and any
additional securities now or hereafter pledged hereunder.
(iv) "Secured Parties" shall mean the Agent and the Lenders.
(b) Capitalized terms used but not defined herein shall have the respective
meanings ascribed to such terms in the Loan Agreement. Unless the context of
this Agreement clearly requires otherwise, references to the plural include the
singular, and references to the singular include the plural.
2. Security Interest. To secure the Pledged Stock Issuer's prompt, punctual and
faithful payment and performance of all and each of the Obligations, the Pledgor
hereby deposits with and pledges to the Agent, for its benefit and the benefit
of each of the other Secured Parties, the Pledged Collateral and hereby grants
to the Agent, for its benefit and the benefit of each of the other Secured
Parties, a security interest in and lien on all of the Pledgor's right, title
and interest in and to the Pledged Collateral.
3. Special Warranties and Covenants of the Pledgor. The Pledgor hereby warrants
and covenants to the Agent and each of the other Secured Parties that:
(a) The Pledged Collateral is duly and validly pledged with the Agent, for its
benefit and the benefit of each of the other Secured Parties, in accordance with
law and the Pledgor warrants and will defend the Agent's right, title and
security interest in and to the Pledged Collateral against the claims and
demands of all persons whomsoever.
(b) This Agreement and the delivery of the Pledged Collateral to the Agent
creates a perfected first priority security interest in all of the Pledged
Collateral in favor of the Agent for its own benefit and the benefit of each of
the other Secured Parties, securing payment of the Obligations, and that all
actions necessary to achieve such perfection have been taken.
(c) The Pledgor has good title to the Pledged Collateral, free and clear of all
claims, mortgages, pledges, liens, security interests and other encumbrances of
every nature whatsoever.
(d) All of the Pledged Stock has been duly and validly issued and is fully paid
and nonassessable.
(e) The Pledged Stock constitutes all of the presently issued and outstanding
capital stock of the Pledged Stock Issuer issued to the Pledgor. The Pledged
Notes constitute all promissory notes, instruments or other evidences of
indebtedness of any kind or nature payable to the Pledgor.
(f) If (i) any additional shares of capital stock of any class of the Pledged
Stock Issuer or if any promissory notes of the Pledged Stock Issuer or other
securities of the Pledged Stock Issuer and/or (ii) any promissory notes,
instruments or other evidences of indebtedness of any kind or nature payable to
the Pledgor are acquired by the Pledgor after the date hereof, the same shall
constitute Pledged Collateral and shall be deposited and pledged with the Agent,
for its benefit and the benefit of each of the other Secured Parties, as
provided in Section 1 hereof simultaneously with such acquisition. The Pledgor
will promptly notify the Agent of the date and amount of any loans made from
time to time by the Pledgor to the Pledged Stock Issuer.
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(g) If at any time and from time to time any Pledged Collateral consists of an
uncertificated security or a security in book entry form, then the Pledged Stock
Issuer shall immediately register or enter the Pledged Collateral, as the case
may be, in the name of Agent, for its benefit and the benefit of each of the
Secured Parties, or otherwise cause the Secured Parties' security interest
thereon to be perfected in accordance with applicable law.
(h) Pledgor has taken all steps it deems necessary or appropriate to be informed
on a continuing basis of changes or potential changes affecting the Pledged
Collateral (including rights of conversion and exchange, rights to subscribe,
payment of dividends, reorganizations or recapitalization, tender offers and
voting rights), and Pledgor agrees that neither the Agent nor any Agent shall
have any responsibility or liability for informing Pledgor of any such changes
or potential changes or for taking any action or omitting to take any action
with respect thereto.
(i) All information herein or hereafter supplied to Agent by or on behalf of
Pledgor in writing with respect to the Pledged Collateral is, or in the case of
information hereafter supplied will be, accurate and complete in all material
respects.
(j) The Pledgor will not sell, convey or otherwise dispose of any of the Pledged
Collateral, nor will the Pledgor create, incur or permit to exist any pledge,
mortgage, lien, charge, encumbrance or any security interest whatsoever with
respect to any of the Pledged Collateral or the proceeds thereof, other than
liens on and security interests in the Pledged Collateral created hereby or
which are otherwise expressly permitted under the Loan Agreement.
(k) The Pledgor will not consent to or approve the issuance of any additional
shares of capital stock of any class of the Pledged Stock Issuer if such
issuance would violate the terms of the Loan Agreement or would cause a Default
or Event of Default under the Loan Agreement and, in the event that any such
additional shares of capital stock are issued to the Pledgor, they shall be
deposited and pledged with the Agent simultaneously with such issuance as
provided in Section 1 hereof.
(l) Neither the pledge of the Pledged Collateral pursuant to this Agreement nor
the extensions of credit represented by the Obligations violates Regulation T, U
or X of the Board of Governors of the Federal Reserve System.
4. Further Assurances.
(a) Pledgor agrees that from time to time, at the expense of Pledgor, Pledgor
will promptly execute and deliver all further instruments and documents, and
take all further actions that may be necessary or reasonably desirable, or that
Agent may request, in order to perfect and protect any security interest granted
or purported to be granted hereby or to enable Agent to exercise and enforce its
rights and remedies hereunder with respect to any Pledged Collateral. Without
limiting the generality of the foregoing, Pledgor and the Pledged Stock Issuer,
as the case may be, will: (i) at the request of Agent, xxxx conspicuously their
respective records pertaining to the Pledged Collateral with a legend, in form
and substance reasonably satisfactory to Agent, indicating that such Pledged
Collateral is subject to the security interest granted hereby; (ii) execute and
file such financing or continuation statements, or amendments thereto, and such
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other instruments or notices, as may be necessary or reasonably desirable, or as
Agent may request, in order to perfect and preserve the security interests
granted or purported to be granted hereby; (iii) allow inspection of the Pledged
Collateral by Agent or Persons designated by Agent; and (iv) appear in and
defend any action or proceeding that may affect Pledgor's title to or the
Agent's security interest in the Pledged Collateral.
(b) Pledgor hereby authorizes Agent to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Pledged Collateral without the signature of Pledgor where permitted by law.
A carbon, photographic, or other reproduction of this Agreement or any financing
statement covering the Pledged Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
(c) Upon request, Pledgor will furnish to Agent: (i) a certificate executed by
an authorized officer of Pledgor, and dated as of the date of delivery to Agent,
itemizing in such detail as Agent may request, the Pledged Collateral which, as
of the date of such certificate, has been delivered to Agent by Pledgor pursuant
to the provisions of this Agreement; and (ii) such statements and schedules
further identifying and describing the Pledged Collateral and such other reports
in connection with the Pledged Collateral as Agent may request.
5. Covenants of Pledgor. Pledgor shall:
(a) Perform each and every covenant in the Loan Documents applicable to Pledgor;
and
(b) Upon receipt by Pledgor or any material notice, report, or other
communication from the Pledged Stock Issuer relating to all or any part of the
Pledged Collateral, deliver such notices, report or other communication to Agent
as soon as possible, but in no event later than five (5) days following the
receipt thereof by Pledgor.
6. Agent as Pledgor's Attorney-in-Fact.
(a) Pledgor hereby irrevocably appoints Agent as Pledgor's attorney-in-fact,
with full authority in the place and stead of Pledgor and in the name of
Pledgor, Agent or otherwise, from time to time at Agent's discretion, to take
any action and to execute any instrument that Agent may reasonably deem
necessary or advisable to accomplish the purposes of this Agreement, including:
(i) upon the occurrence and during the continuance of an Event of Default, to
receive, endorse, and collect all instruments made payable to Pledgor
representing any dividend, interest payment or other distribution in respect of
the Pledged Collateral or any part thereof to the extent permitted hereunder and
to give full discharge for the same and to execute and file governmental
notifications and reporting forms; (ii) to issue any notifications/instructions
Agent deems necessary pursuant to Section 3 of this Agreement; or (iii) to
arrange for the transfer of the Pledged Collateral on the books of the Pledged
Stock Issuer or any other Person to the name of Agent or to the name of Agent's
nominee, for the benefit of the Lenders.
(b) In addition to the designation of Agent as Pledgor's attorney-in-fact in
subsection (a), Pledgor hereby irrevocably appoints Agent as Pledgor's agent and
attorney-in-fact to make, execute and deliver any and all documents and writings
which may be necessary or appropriate for approval of, or be required by, any
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regulatory authority located in any city, county, state or country where Pledgor
or the Pledged Stock Issuer engage in business, in order to transfer or to more
effectively transfer any of the Pledged Shares or otherwise enforce the Secured
Parties' rights hereunder.
7. Distributions. In case, upon the dissolution, winding up, liquidation or
reorganization of the Pledged Stock Issuer whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors or
any other marshalling of the assets and liabilities of such Pledged Stock Issuer
or otherwise, any sum shall be paid or any property shall be distributed upon or
with respect to any of the Pledged Collateral, such sum shall be paid over to
the Agent to be held as collateral security for the Obligations. In case any
stock dividend shall be declared on any of the Pledged Collateral, or any share
of stock or fraction thereof shall be issued pursuant to any stock split
involving any of the Pledged Collateral, or any distribution of capital
(including cash dividends, except those expressly allowed under the Loan
Agreement) shall be made on any of the Pledged Collateral, or any property shall
be distributed upon or with respect to the Pledged Collateral pursuant to
recapitalization or reclassification of the capital of the Pledged Stock Issuer,
the shares or other property so distributed shall be delivered to the Agent to
be held as collateral security for the Obligations.
8. Events of Default. Any Event of Default as defined and provided in the Loan
Agreement shall constitute an Event of Default under this Agreement.
9. Rights and Remedies of the Secured Parties. Upon the occurrence and
continuance of any Event of Default, such default not having previously been
remedied or cured within any applicable grace or cure periods, the Agent shall
have the following rights and remedies:
(a) All rights and remedies provided by law, including, without limitation,
those provided by the New York Uniform Commercial Code;
(b) All rights and remedies provided in this Agreement; and
(c) All rights and remedies provided in the Loan Agreement or in any other Loan
Document, other agreement, document or instrument pertaining to the Obligations.
The rights and remedies of the Agent set forth above shall be
exercisable only in connection with a foreclosure on the Pledged Collateral in
accordance with the terms hereof. The rights and remedies of the Agent under
this Agreement against the Pledgor shall be limited to foreclosure on such
Pledged Collateral, and the Agent shall not have the right to commence any
action against the Pledgor for any deficiency remaining in respect of the
Obligations after the exercise of the rights of the Agent against the Pledged
Collateral in accordance with terms of this Agreement.
10. Right to Transfer into Name of Agent, etc. In case there shall exist an
Event of Default that shall be continuing after applicable grace and cure
periods, but subject to the provisions of the Uniform Commercial Code or other
applicable law, the Agent may cause all or any of the Pledged Collateral to be
transferred into its name or into the name of its nominee or nominees. So long
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as no Event of Default shall exist and be continuing, the Pledgor shall be
entitled to exercise as the Pledgor shall deem fit, but in a manner not
inconsistent with the terms hereof or of the Obligations, the voting power with
respect to the Pledged Collateral. In addition, Agent shall have the right at
any time to exchange certificates or instruments representing or evidencing
Pledged Collateral for certificates or instruments of smaller or larger
denominations.
11. Right of Agent to Exercise Voting Power, etc. In case there shall exist an
Event of Default, which shall not have been remedied or cured, the Agent, until
such Event of Default has been remedied or cured in accordance with the Loan
Agreement shall be entitled to exercise the voting power with respect to the
Pledged Collateral, to receive and retain, as collateral security for the
Obligations, any and all dividends or other distributions at any time and from
time to time declared or made upon any of the Pledged Collateral, and to
exercise any and all rights of payment, conversion, exchange, subscription or
any other rights, privileges or options pertaining to the Pledged Collateral as
if it were the absolute owner thereof, including without limitation, the right
to exchange, at its discretion, any and all of the Pledged Collateral upon the
merger, consolidation, reorganization, recapitalization or other readjustment of
the Pledged Stock Issuer or, upon the exercise of any such right, privilege or
option pertaining to the Pledged Collateral, and in connection therewith, to
deposit and deliver any and all of the Pledged Collateral with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as the Agent may determine, all without liability except to
account for property actually received, neither the Agent nor any of the Lenders
shall have any duty to exercise any of the aforesaid rights, privileges or
options and shall not be responsible for any failure to do so or delay in so
doing.
12. Right of Agent to Dispose of Collateral, etc. Upon the occurrence and
continuance of an Event of Default, such default not having previously been
remedied or cured within any applicable grace or cure periods, the Agent shall
have the right, unless the Event of Default shall have been remedied or cured in
accordance with the Loan Agreement prior to taking any such actions, at any time
or times thereafter to sell, resell, assign and deliver all or any of the
Pledged Collateral in one or more parcels at any exchange or broker's board or
at public or private sale. The Agent will give the Pledgor at least ten (10)
days' prior written notice at the address of the Pledgor specified in Section 23
hereof of the time and place of any public sale thereof or of the time after
which any private sale or any other intended disposition thereof is to be made.
Any such notice shall be deemed to meet any requirement hereunder or under any
applicable law (including the Uniform Commercial Code) that reasonable
notification be given of the time and place of such sale or other disposition.
Such notice may be given without any demand of performance or other demand, all
such demands being hereby expressly waived by the Pledgor. All such sales shall
be conducted in a commercially reasonable manner and shall be at such
commercially reasonable price or prices as the Agent shall deem best and either
for cash or on credit or for future delivery (without assuming any
responsibility for credit risk). At any such sale or sales the Agent may
purchase any or all of the Pledged Collateral to be sold thereat upon such terms
as the Agent may deem best. Upon any such sale or sales the Pledged Collateral
so purchased shall be held by the purchaser absolutely free from any claims or
rights of whatsoever kind or nature, including any equity of redemption and any
similar rights, all such equity of redemption and any similar rights being
hereby expressly waived and released by the Pledgor. In the event any consent,
approval or authorization of any governmental agency will be necessary to
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effectuate any such sale or sales, the Pledgor shall execute, and hereby agree
to cause the Pledged Stock Issuer to execute, all such applications or other
instruments as may be required. The proceeds of any such sale or sales, shall be
applied as provided in the Loan Agreement.
The Pledgor recognizes that the Agent may be unable to effect a public
sale of all or a part of the Pledged Collateral by reason of certain
prohibitions contained in the Securities Act of 1933, but may be compelled to
resort to one or more private sales to a restricted group of purchasers, each of
whom will be obligated to agree, among other things, to acquire such Pledged
Collateral for its own account, for investment and not with a view to the
distribution or resale thereof. The Pledgor acknowledges that private sales so
made may be at prices and upon other terms less favorable to the seller than if
such Pledged Collateral were sold at public sales, and that the Agent has no
obligation to delay sale of any such Pledged Collateral for the period of time
necessary to permit such Pledged Collateral to be registered for public sale
under the Securities Act of 1933. The Pledgor agrees that any such private sales
shall not be deemed to have been made in a commercially unreasonable manner
solely because they shall have been made under the foregoing circumstances.
If Agent, for its benefit and the benefit of the Secured Parties, shall
determine to exercise its right to sell all or any portion of the Pledged
Collateral pursuant to this Section, the Pledged Stock Issuer shall, upon the
request of the Agent and at its own expense:
(i) execute and deliver, all such instruments and documents, and to do or cause
to be done all such other acts and things, as may be necessary or, in the
opinion of Agent, advisable to register such Pledged Collateral under the
provisions of the Securities Act of 1933, and use its 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 prospectuses which, in the opinion of Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act of
1933 and the rules and regulations of the Securities and Exchange
Commission applicable thereto;
(ii) use its best efforts to qualify the Pledged Collateral under the state
securities laws or "Blue Sky" laws and to obtain all necessary governmental
approvals for the sale of the Pledged Collateral, as requested by Agent;
(iii)make available to its respective security holders, as soon as practicable,
an earnings statement which will satisfy the provisions of Section 11(a) of
the Securities Act of 1933;
(iv) execute and deliver to any person, entity or governmental authority as
Agent may choose, any and all documents and writings which, in Agent's
reasonable judgment, may be necessary or appropriate for approval, or be
required by, any regulatory authority located in any city, state or country
where Pledgor or Pledged Stock Issuer engage in business, in order to
transfer or to more effectively transfer the Pledged Shares or otherwise
enforce Agent's rights hereunder; and
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(v) do or cause to be done all such other acts and things as may be necessary
to make such sale of the Pledged Collateral or any part thereof valid and
binding and in compliance with applicable law.
Pledgor acknowledges that there is no adequate remedy at law for failure
by it to comply with the provisions of this Section and that such failure would
not be adequately compensable in damages, and therefore agrees that its
agreements contained in this Section may be specifically enforced.
13. Collection of Amounts Payable on Account of Pledged Collateral, etc. Upon
the occurrence and during the continuance of any Event of Default, the Agent
may, but without obligation to do so, demand, xxx for and/or collect any money
or property at any time due, payable or receivable, to which it may be entitled
hereunder, on account of or in exchange for any of the Pledged Collateral and
shall have the right, for and in the name, place and stead of the Pledgor, to
execute endorsements, assignments or other instruments of conveyance or transfer
with respect to all or any of the Pledged Collateral.
14. Care of Pledged Collateral in Agent's Possession. Beyond the exercise of
reasonable care to assure the safe custody of the Pledged Collateral while held
hereunder, the Agent shall have no duty or liability to collect any sums due in
respect thereof or to protect or preserve rights pertaining thereto, and shall
be relieved of all responsibility for the Pledged Collateral upon surrendering
the same to the Pledgor.
15. WAIVERS, ETC. THE PLEDGOR HEREBY WAIVES PRESENTMENT, DEMAND, NOTICE, PROTEST
AND, EXCEPT AS IS OTHERWISE PROVIDED HEREIN, ALL OTHER DEMANDS AND NOTICES IN
CONNECTION WITH THIS AGREEMENT OR THE ENFORCEMENT OF THE AGENT'S OR THE LENDERS'
RESPECTIVE RIGHTS HEREUNDER OR IN CONNECTION WITH ANY OBLIGATIONS OR ANY PLEDGED
COLLATERAL; CONSENT TO AND WAIVE NOTICE OF THE GRANTING OF RENEWALS, EXTENSIONS
OF TIME FOR PAYMENT OR OTHER INDULGENCES TO THE PLEDGED STOCK ISSUER OR THE
PLEDGOR OR TO ANY THIRD PARTY, OR SUBSTITUTION, RELEASE OR SURRENDER OF ANY
COLLATERAL SECURITY FOR ANY SECURED OBLIGATION, THE ADDITION OR RELEASE OF
PERSONS PRIMARILY OR SECONDARILY LIABLE ON ANY SECURED OBLIGATION OR ON ANY
COLLATERAL SECURITY FOR ANY SECURED OBLIGATION, THE ACCEPTANCE OF PARTIAL
PAYMENTS ON ANY SECURED OBLIGATION OR ON ANY COLLATERAL SECURITY FOR ANY SECURED
OBLIGATION AND/OR THE SETTLEMENT OR COMPROMISE THEREOF. NO DELAY OR OMISSION ON
THE PART OF THE AGENT IN EXERCISING ANY RIGHT HEREUNDER SHALL OPERATE AS A
WAIVER OF SUCH RIGHT OR OF ANY OTHER RIGHT HEREUNDER. ANY WAIVER OF ANY SUCH
RIGHT ON ANY ONE OCCASION SHALL NOT BE CONSTRUED AS A BAR TO OR WAIVER OF ANY
SUCH RIGHT ON ANY FUTURE OCCASION. THE PLEDGOR FURTHER WAIVES ANY RIGHT IT MAY
HAVE UNDER THE CONSTITUTION OF THE STATE OF NEW YORK (OR UNDER THE CONSTITUTION
OF ANY OTHER STATE IN WHICH ANY OF THE PLEDGED COLLATERAL MAY BE LOCATED), OR
UNDER THE CONSTITUTION OF THE UNITED STATES OF AMERICA, TO NOTICE (OTHER THAN
ANY REQUIREMENT OF NOTICE PROVIDED HEREIN) OR TO A JUDICIAL HEARING PRIOR TO THE
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EXERCISE OF ANY RIGHT OR REMEDY PROVIDED BY THIS AGREEMENT TO THE AGENT AND
WAIVES ITS RIGHTS, IF ANY, TO SET ASIDE OR INVALIDATE ANY SALE DULY CONSUMMATED
IN ACCORDANCE WITH THE FOREGOING PROVISIONS HEREOF ON THE GROUNDS (IF SUCH BE
THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL HEARING. THE
PLEDGOR'S WAIVERS UNDER THIS SECTION HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY
AND KNOWINGLY AND AFTER THE PLEDGOR HAS BEEN APPRISED AND COUNSELED BY ITS
ATTORNEYS AS TO THE NATURE THEREOF AND ITS POSSIBLE ALTERNATIVE RIGHTS.
16. Termination; Assignment, etc. This Agreement and the security interest in
the Pledged Collateral created hereby shall terminate when all of the
Obligations have been paid and finally discharged in full in cash (provided that
the Agent and the Lenders are no longer obligated to make Loans under the Loan
Agreement). For all purposes of this Agreement, no Default or Event of Default
shall be deemed to have been cured or waived except as expressly provided in the
Loan Agreement. No waiver by the Agent or by any other holder of Obligations of
any default shall be effective unless in writing nor operate as a waiver of any
other default or of the same default on a future occasion. In the event of a
sale or assignment by the Agent of all or any of the Obligations held by it in
accordance with the terms of the Loan Agreement, the Agent may assign or
transfer the rights and interest of the Agent, for the benefit of the Lenders,
under this Agreement in whole or in part to the purchaser or purchasers of such
Obligations, whereupon such purchaser or purchasers shall become vested with all
of the powers and rights of the Agent hereunder, and the Agent shall thereafter
be forever released and fully discharged from any liability or responsibility
hereunder with respect to the rights and interest so assigned.
17. Reinstatement. Notwithstanding the provisions of Section 13, this Agreement
shall continue to be effective or be reinstated, as the case may be, if at any
time any amount received by the Agent in respect of the Obligations is rescinded
or must otherwise be restored or returned by the Agent upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Pledged Stock
Issuer or the Pledgor or upon the appointment of any intervenor or conservator
of, or trustee or similar official for, the Pledged Stock Issuer or the Pledgor
or any substantial part of their respective properties, or otherwise, all as
though such payments had not been made.
18. Governmental Approvals, etc. Upon the exercise by the Agent of any power,
right, privilege or remedy pursuant to this Agreement which requires any
consent, approval, qualification or authorization of any governmental authority
or instrumentality, the Pledgor will execute and deliver, or will cause the
execution and delivery of, all applications, certificates, instruments and other
documents and papers that the Agent may be required to obtain for such
governmental consent, approval, qualification or authorization.
19. Restrictions on Transfer, etc. To the extent that any restrictions imposed
by the charter or by-laws of the Pledged Stock Issuer or any agreement among the
holders of capital stock of the Pledged Stock Issuer or other document or
instrument would in any way affect or impair the pledge of the Pledged
Collateral hereunder or the exercise by the Agent of any right granted
hereunder, including, without limitation, the right of the Agent to dispose of
the Pledged Collateral upon the occurrence of any Event of Default, the Pledgor
hereby waives such restrictions. The Pledged Stock Issuer represents and
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warrants that it has taken each necessary action to waive such restrictions. The
Pledgor Stock Issuer and the Pledgor will each take any further action which the
Agent may reasonably request in order that the Agent and the Lenders may obtain
and enjoy the full rights and benefits granted to the Agent and the Lenders by
this Agreement free of any such restrictions.
20. Amendments. No amendment or waiver of any provision of this Agreement nor
consent to any departure by Pledgor herefrom shall in any event be effective
unless the same shall be in writing and signed by Agent, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
21. Security Interest Absolute. To the maximum extent permitted by law, all
rights of Agent and the Lenders, all security interests hereunder, and all
obligations of Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of any of the Obligations or any
other agreement or instrument relating thereto, including any of the Loan
Documents;
(b) any change in the time, manner, or place of payment of, or in any other term
of, all or any of the Obligations, or any other amendment or waiver of or any
consent to any departure from any of the Loan Documents, or any other agreement
or instrument relating thereto;
(c) any exchange, release, or non-perfection of any other collateral, or any
release or amendment or waiver of or consent to departure from any guaranty for
all or any of the Obligations; or
(d) any other circumstances that might otherwise constitute a defense available
to, or a discharge of, Pledgor.
To the maximum extent permitted by law, Pledgor hereby waives any right
to require Agent to: (A) proceed against or exhaust any security held from
Pledgor; or (B) pursue any other remedy in Agent's power whatsoever.
22. Waiver of Marshaling. Each of Pledgor and Agent acknowledges and agrees that
in exercising any rights under or with respect to the Pledged Collateral: (i)
Agent is under no obligation to marshal any Pledged Collateral; (ii) may, in its
absolute discretion, realize upon the Pledged Collateral in any order and in any
manner it so elects; and (iii) may, in its absolute discretion, apply the
proceeds of any or all of the Pledged Collateral to the Obligations in any order
and in any manner it so elects. Pledgor and Agent waive any right to require the
marshaling of any of the Pledged Collateral.
23. Notices. Except as otherwise provided herein, all notices to the Pledgor or
to the Agent shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes hereof if made in accordance with and delivered
to the respective addresses provided in the Loan Agreement.
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24. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement, including
the validity hereof and the rights and obligations of the parties hereunder,
shall be construed in accordance with and governed by the laws of the State of
New York. The Pledgor, to the extent that it may lawfully do so, hereby consents
to the jurisdiction of the state and federal courts located in the county of New
York, State of New York, as well as to the jurisdiction of all courts to which
an appeal may be taken from such courts, for the purpose of any suit, action or
other proceeding arising out of any of its obligations hereunder or with respect
to the transactions contemplated hereby, and expressly waives any and all
objections it may have as to venue in any such courts. The Pledgor further
agrees that a summons and complaint commencing an action or proceeding in any of
such courts shall be properly served and shall confer personal jurisdiction if
served personally or by certified mail to it at its address as provided in the
Loan Agreement or as otherwise provided under the laws of the State of New York.
The Pledgor irrevocably waives all right to a trial by jury in any suit, action
or other proceeding instituted by or against it in respect of its obligations
hereunder or the transactions contemplated hereby.
25. Miscellaneous.
(a) This Agreement shall inure to the benefit of and be binding upon the Agent
and the Pledgor and their respective successors and assigns. In case any
provision in this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
(b) This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.
(c) This Agreement has been entered into in conjunction with the provisions of
and the security interest granted to the Agent, for its benefit and the ratable
benefit of the Lenders, under the Loan Agreement. The rights and remedies of the
Pledgor, the Pledged Stock Issuer and the Agent with respect to the security
interests granted herein are in addition and without prejudice to those set
forth in the Loan Agreement, all terms and provisions of which are hereby
incorporated herein by reference. In the event that any provisions of this
Agreement are deemed to conflict with the Loan Agreement or the other Loan
Documents, the provisions of the Loan Agreement or the other Loan Documents
shall govern.
11
IN WITNESS WHEREOF, the parties have executed this Pledge Agreement as a
sealed instrument as of the date first above written.
PLEDGOR:
THE RIGHT START, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
PLEDGED STOCK ISSUER:
ZB COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
AGENT:
XXXXX FARGO RETAIL FINANCE, LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
12
* For the purposes of this Schedule I, "Percentage" means the percentage of all
of the issued and outstanding shares of capital stock of the Pledged Stock
Issuer on a fully diluted basis.
SCHEDULE I TO BORROWER PLEDGE AGREEMENT
PLEDGED STOCK
Description (class
and/or series)
Pledged Stock No. of Shares Percentage* Certificate No.
--------------- ------------- ----------- --------------
Common Stock 1,000 100% 1
PLEDGED NOTES AND INSTRUMENTS
NONE
